Talk:Law/Archive 2

This is an archive of past discussions about Law. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 1

Archive 2

Archive 3

Archive 4

Archive 5

Yes, lots of hard work ahead... User:Fredbauder

Reinstating portions of text that you have written after someone else has integrated those portions of text into the main article accomplishes nothing, neither does ignoring valid criticism of your work. That is why I limited my original remarks to the talk page and attempted to incorporate the valid criticisms of others into the revised version of the article only after an extended discussion had taken place here on the talk page. Given your disposition to ignore that progressive movement, the best course of action would seem to be restoring the status quo ante. However, I am not willing to do so, as we could go back and forth on something like this for quite some time, and I have better things to do with my time. As such, progressive movement on this article will have to wait until you change your disposition or until someone else with more patience and persistence than I have comes along.--NetEsq

Law is a set or system of rules regulating the actions of the members of a community. A community may be described in very broad terms as in the United Nations. It may also be in very narrow terms; the set of house rules that govern a Saturday night poker game are laws. There's a huge range between those two.

Law is not a process. Due process of law refers to the application of law, but is not the law itself even as it is subject to procedural laws.
How laws are written (legislation) is not law, even as that too is subject to procedural rules that are in the law.
A law may, but need not, include enforcement and penalty rules.

I very much believe in the "Keep it Simple" principle. That means asking what do we all agree about without trying to expand definitions in questionable areas. Eclecticology 12:55 Sep 5, 2002 (PDT)

I concur with all of your assertions about what the law is (and is not), as well as your assertion about the best way to proceed, and I would welcome and support any attempt by anyone to conform the current version of the law article to the spirit of such assertions.--NetEsq 2:48pm Sep 5, 2002 (PDT)

Eclecticology wrote, "Law is a set or system of rules regulating the actions of the members of a community. A community may be described in very broad terms as in the United Nations."

Most social control (rules regulating the actions of the members of a community) is informal, indeed unwritten. Most communities are less than governments. Law is not usually used to describe the norms or rules of organizations (although the word bylaws is used). Law is generally a formal system relying on definite written rules. Anyway the statement needs to start, "Law is a formal set or system..." I would follow that with ...of social control... instituted by a government. Fred Bauder

I don't think that "formal" is essential, at least not in the "common law" countries. Law in these countries depends as much on centuries of precedents as it does on statutes. "Social control" really only reflects the part of law that controls the people's relationship with society, and even suggests an undue weight on criminal law. The Law of Contracts sets standards for a lot of interpersonal relationships with the intent of preventing misunderstandings; prescribed penalties have a minor role in this where remedies are often sought through civil actions.

I tend to view by-laws as a subset of the much bigger set of laws, rather than something apart from laws. The term "by-laws" does include the rules that private organizations promulgate for their own governance, but laws passed by municipalities are also called by-laws. Governments are indeed the most common source of laws, but I hesitate at a concept of law which depends on knowing what government is, or who government is. A country in a state of civil war can have two or more governments, each of which may assume the right to pass laws for the whole country; the whole dispute may then only be resolved by the law that comes from the barrel of a gun. It strikes me as unwise to have the definition of law depend on the even less stable concept of government.

The comment that "most communities are less than governments" is an apple vs. bananas comparison; while communities are groups of people governments are institutions. A very small community may share the tasks of governance among all of its members. Eclecticology 17:08 Sep 6, 2002 (UCT)

The current page contains the following, under "legal systems and traditions".

Canon law -- Civil law -- Common law -- Consuetudinary law -- Constitutional law -- European community law -- International law -- Roman law -- Socialist law -- Statutory law -- Anarchist law

"Consuetudinary law", "Constitutional law", "Statutory law" and "Anarchist law" are not distinct legal systems or traditions. "Consuetudinary law" (why are we not using the far more obvious term "customary law"?), "Constitutional law" and "Statutory law" are features of many or most legal systems -- both the common law and civil law traditions have constitutional and stautory aspects, and customary law is a phenomena shared by different traditions and systems also (although I think in common law it is rather de-emphasised, and customary law is especially de-emphasised in the modern world in general, except on the international level). Finally, anarchist law is not a recognized legal system or tradition, actually practiced, but rather some anarchist theory. Especially since Canon, civil, common, socialist, international, etc., law have significant substantive content, while "anarchist law" is just a bunch of theories hardly implemented (indeed, the idea of law, in the sense of a very large body of traditions, cases, legislation, legal opinions, etc., would seem to contradict anarchism, even if an anarchist society would feature something like law as we know it in other ways.) -- SJK

There is nothing particularly controversial about the changes you have made. However, I would defend the need to continue including a specific reference to consuetudinary law rather than customary law. In addition to its more general meaning (i.e., the unwritten law of custom and tradition), consuetudinary law is a term of art which refers to a specific body of law governing religious observances and practices.--NetEsq 6:18pm Sep 6, 2002 (PDT)

NetEsq: Well, maybe we need to mention both customary law as a general topic, and consuetudinary law as a specific type of customary law, relating to religion? There would be other types of customary law as well -- customary international law, and also in some countries (e.g. some parts of Asia and Africa I think) customary (pre-colonial) law relating to family issues, agriculture and property in rural communities has been incorporated into the legal system. -- SJK

I don't really have any strong feelings about this one way or the other as I am not particularly knowledgeable about customary/consuetudinary law. I only recently encountered these terms in the research that I did when I first started editing the law article. However, your predisposition to cover these topics in separate articles seems to make sense. Perhaps a cross-reference would also be in order.--NetEsq 9:31am Sep 8, 2002

SJK has added some content discussing civil law, common law, and socialist law. This content fits in very well with the spirit of the article, but the article as a whole could now stand some reorganization.--NetEsq 6:29pm Sep 6, 2002 (PDT)

I think what I am trying to do with the article is to structure the article around an operational definition of law. Law as it can be experienced and observed. I'm trying to not delete other definitions of law but to disambiguate them. User:Fredbauder

These revisions are yet another step backwards in terms of both substance (i.e., accuracy) and style (i.e. flow). To wit, it is inaccurate to state that the rule of law is a principle which is on equal footing with physical laws, just as it is inaccurate to make the ambigous assertion that the laws of nature and divine law are similar, or that the laws of nature and divine law are considered to be part of the natural order. This innacurate conflation of distinct concepts creates all sorts of unnecessary confusion.

In terms of style, this latest revision is yet another attempt to steer the article away from a logical flow of ideas and to substitute that logical flow of ideas with an awkward, clumsy, and disjointed attempt at disambiguation. Given the strong confluence of various definitions of the law, such disambiguation is unnecessary and ill advised.

In sum, there is now too much conflation of unrelated concepts and too much disambiguation of related concepts.--NetEsq 9:21am Sep 8, 2002 (PDT)

What is the origin of this statement: "In its most general sense, the law is an institution which defines and governs all human affairs."? It seem unsupportable to me. How was that fact derived? User:Fredbauder

That statement is a summary of the viewpoints which have been expressed by various contributors on this talk page. If it seems unsupportable to you, that is probably because you have not considered these viewpoints, or because you are unfamiliar with the use of the term institution in this general context.--NetEsq 10:40am Sep 8, 2002

In what way does law "define and govern" my going on a date with a girl, or my cooking pasta? Those seem to be a pretty significant human affairs to me. It's not the word "institution" that's the problem, but "all human affairs". I cannot find any supporting viewpoints on this talk page, as you claim. AxelBoldt 18:43 Sep 8, 2002 (UTC)

I don't see anything too wrong with the statement, though it could be improved. The law does govern your date and your pasta cooking; you are not allowed to stab your girlfriend to death on your date, or poison your guests with pasta. That said, I would prefer something like "In its most general sense, the law is an institution which governs the affairs of a community.". Enchanter 19:05 Sep 8, 2002 (UTC)

I would defend the proposition that law qua law, albeit culturally relative, is universal in its scope when it comes to human affairs. To wit, when it comes to something like dating, your freedom to date might be severely restricted if you wanted to go on a date with a minor, a close relative, or a member of the same sex; if you were living in a more traditional society, your "dating freedoms" might be even more severly restricted. Indeed, you might even be told who you are supposed to date. And when it comes to food preparation, that is also a subject which is defined and governed by law -- e.g., kosheric law.--NetEsq

Well, that's the point of limiting law to formal social control, most things done in society are not covered by law, they lie outside law in unregulated areas, covered, if at all, by informal social controls, in our example by customs and norms of dating and pasta cooking. Real enough norms, but not law as expressed through a legal system. Conceded that "formal system of social control" is a sort of institution, but expressed more specifically. User:Fredbauder

<< Well, that's the point of limiting law to formal social control, most things done in society are not covered by law, they lie outside law in unregulated areas, covered, if at all, by informal social controls, in our example by customs and norms of dating and pasta cooking. >>

This is an extremely ethnocentric viewpoint. As set forth above, there is virtually no realm of human conduct which the law qua law does not attempt to define and govern whereas the notion of the law as "formal social control" is incongruent with almost every commonly accepted definition of the law. To wit, there is no commonly accepted definition of the law which states that a law or legal system needs to be "formal," and there is no commonly accepted definition of the law which limits it to "social control." Rather, any commonly accepted definition of the law recognizes the fact that a law or system of laws can be both informal and private in nature.

This is not to say that a law or system of laws cannot be formal and have "social control" as its objective. It clearly can be and intend both of these things, but using the peculiar qualities of some laws to describe the essential nature of all laws is unnecessarily myopic.--NetEsq

As set forth above, there is virtually no realm of human conduct which the law qua law does not attempt to define and govern

First of all, the word "define" has not been defended by anyone above, and it is obviously out of place. Neither "date" nor "cooking pasta" is defined by the law in any sense of the word. Second, while there may be a social custom or rule or even taboo against 35 year old guys going on dates with 15 year old girls, the law qua law :-) is completely silent on the matter. There are myriads of ways of cooking pasta, and the law qua law is, again, completely silent on the matter. AxelBoldt 00:46 Sep 9, 2002 (UTC)

<< First of all, the word "define" has not been defended by anyone above, and it is obviously out of place. >>

I respectfully disagree. The word define has been defended by various contributors, albeit ex post facto, and the word defining has certainly been used in the same context by another contributor before it was ever challenged. To wit:

<< I still believe a better opening definition would be "Law refers to a set of beliefs and practices that promote social control and/or social order" Such laws may regulate conduct, but they often do more, like defining what a person is, or what property is. >>

This paragraph does not defend the usage of "law defines all human affairs" which I am currently critizing as obviously overbroad. Neither does any other contribution on this page, ex post facto or not, contrary to your statement. AxelBoldt

In any event, the propriety of the word define is not "obviously out of place" simply because (as you assert) the law does not define "date" or "cooking pasta." The Law does define "social taboos" and "dietary laws," just as certainly as it defines "crime," "torts," and "contracts." Inclusive in all of these more general definitions of human activity are the specific activities which the law governs, such as dating and cooking pasta.

The law qua law does not define social taboos. Picking your nose in public is not a matter of law. Speeding in traffic is a matter of law, but not a social taboo. And there certainly is no law governing the cooking of pasta. Your definition is so overbroad to be meaningless. The law attempts to regulate certain human behaviors and define certain concepts, but not "all human affairs". AxelBoldt

To be clear, the law is *NOT* silent on 35 year old guys going out on dates with 15 year old girls. Rather, it is explicitly prohibited in some jurisdictions and explicitly allowed in others, albeit selectively enforced. (See: Age of consent.)--NetEsq

Not true. You can go on a date all you want. You just can't have sex, which isn't typically something you do on a date anyway. AxelBoldt

Actually not in all jurisdictions, in one law of Iran it is against the law to date. The way (for mature couples) to get around that is to marry then divorce by saying the words "I divorce you". BTW, talk about ethnocentrism. Look at our new first sentence with a link to Parliament. Otherwise it does seem pretty good.User:Fredbauder

Ok, looking back I did find something that might be helpful:

I would defend the proposition that law qua law, albeit culturally relative, is universal in its scope when it comes to human affairs. To wit, when it comes to something like dating, your freedom to date might be severely restricted if you wanted to go on a date with a minor, a close relative, or a member of the same sex; if you were living in a more traditional society, your "dating freedoms" might be even more severly restricted. Indeed, you might even be told who you are supposed to date. And when it comes to food preparation, that is also a subject which is defined and governed by law -- e.g., kosheric law.--NetEsq

Certainly orthodox Jewish law as conformed to by observant Jews does attempt to regulate many aspects of ordinary life such as food preparation. It is not a governmental production but rabbinical. Although this is not the usual situation and ought not to swallow the general case, it does need to be fitted somewhere in the article. Even within that practice there is a limit to what situations are formally prescribed for, beyond which there is a realm of informal social control. Islamic and customary Hindu practices also fall in this area. User:Fredbauder

AxelBoldt seems to be engaging in a semantic argument -- one that is pretty unconstructive, given the history of the discussion on the Talk page. I think Fredbauder is also raising an ultimately semantic issue (although somewhat more construtively). NetEsq has made it very clear that by "law" in the opening definition he does not mean what AxelBoldt seems to think "law" means. AxelBoldt seems to think that "law" means legislation passed by congress (or a state legislature). As NetEsq has pointed out, that is a very narrow and ethnocentric definition of law.

I agree with NetEsq's approach; I believe that the article as a whole should discuss the state of current scholarship on law and legal systems, and I think that the first paragraph should introduce that discussion clearly -- which would require a general definition.

I think the solution to the various forms of semantic confusion raised by AxelBoldt and Fredbauder would be to specify, immediately, the different domains under this general definition of law -- including written laws that are enforced by a specific institution (i.e. government), written laws that are agreed to by a community (e.g. Rabbinic law), unwritten but acknowledged laws (i.e. custom), and unwritten and unacknowledged laws. If AxelBoldt is unfamiliar with the vast literature on this last category of law, I suggest he start with Harold Garfinkel's Studies in Ethnomethodology. Of course, ideally the article itself will eventually have a discussion of Garfinkel and others. In the meantime, what is important is a good general definition. NetEsq, I hope I have not by some implication misrepresented your views here, Slrubenstein

I'm steering well clear of this article, but I'll just dorp in to mention that in the UK, law isn't just set by Parliament, there's also Common Law (if memory serves) which is established by precedents in the courts. -- Tarquin

<< NetEsq, I hope I have not by some implication misrepresented your views here, >>

You have not misrepresented my views. In fact, I think that all of your comments and criticism here have been thoughtful and productive. To wit, your initial criticism of my definition of the law as a body of knowledge led me to my more general restatement of that definition in re the law as an institution which defines and governs human affairs; the very next sentence then qualified this definition to state that the most common form which the law takes is a formal legal system which is established and enforced by a government.

I also value AxelBoldt's criticism of my definition as being overly broad. In the process of defending my definition, I set forth kosheric law as an example of a legal system which many had not considered, thereby bringing Fredbauder's position and mine into closer alignment. On this note, I think we can all agree that concerns in re ethnocentrism are extremely wellfounded, as evidenced by the direction the present article is taking. --NetEsq 9:23am Sep 9, 2002 (PDT)

(Restated from discussion above:)

To be clear, the law is *NOT* silent on 35 year old guys going out on dates with 15 year old girls. Rather, it is explicitly prohibited in some jurisdictions and explicitly allowed in others, albeit selectively enforced. (See: Age of consent.)--NetEsq

Not true. You can go on a date all you want. You just can't have sex, which isn't typically something you do on a date anyway. AxelBoldt

While Fredbauder has already set forth a rebuttal to this assertion, I would like to point out that most jurisdictions in the United States take an active role in prosecuting 35 year old guys who go out on dates with 15 year old girls, and the defense that "we didn't have sex" is seldom relevant to the criminal charges which are brought against the male suitors.

My purpose in pointing this out is to clarify that the law is not simply a formal statement of rights, duties, and explicit prohibitions on conduct. Rather, it is an expression of community standards and values which is often enforced in situations where you and I might agree it should *NOT* apply. To wit, try picking your nose in a public courtroom, and a judge just might hold you in contempt, and similar quasi-legal sanctions might apply in a variety of less formal contexts.

At the risk of waxing philosophical, most people are unaware of how far reaching the scope of the law is because they are so quick to comply with it when violations are brought to their attention. But when people step out of the boundaries of what is acceptable social deviance (as defined by the law), they quickly find themselves subject to the tender mercies of a legal system which can be extremely complex and menacing. Even in the most innocuous cases, someone who is not in compliance with the law may lose virtually all the freedoms which he or she takes for granted.

Are there human affairs which are not "defined and governed" by the law? No doubt there are, but these exceptions are noteworthy precisely because the freedom to do as one pleases is not a given in any human society. Rather, the law in a given jurisdiction defines and governs what human affairs are not subject to the law.--NetEsq 10:08am Sep 9, 2002 (PDT)

I think you go to far with this, although after some time I'm still not sure why you do. Perhaps some information on your philosophy might be helpful. Most aspects of human affairs are outside the realm of law per se (as formal social control) even in totalitarian societies. In line with our earlier conversations I was thinking we might in addition to law as an institution of government, include law that is derived from religious authority, and then disambiguate law (religious). That would separate Law of Nature from Divine Law. Also I think a paragraph on customary law with links to custom, social control, culture, norm, more, taboo, etc. might be worthwhile. BTW I admit your mellifluousness, but don't take that as a license to drastically change content and leave out necessary links should you choose to rewrite something. User:Fredbauder

<< Perhaps some information on your philosophy might be helpful. >>

I'd be happy to provide it, but the purpose of my exposition was not to proselytize. Rather, I was advocating the need for a more holistic definition of the law, one which becomes more specific when considered in the context of a particular culture or other frame of reference.

<< Most aspects of human affairs are outside the realm of law per se (as formal social control) even in totalitarian societies. >>

This assertion is true, but only in the context of one particular type of law -- i.e., the law qua law in those Western Cultures where the law is more or less synonymous with a formal legal system which is established and enforced by a government. It does not apply in the context of kosheric law, a form of law that I think we both agree is in fact law, nor does it apply in the context of a culture which uses a de facto caste system, where virtually every aspect of one's daily life is controlled by a law that simply exists -- i.e., a society governed by religious dharma. In such cultures, there is often no formal social control: People simply obey the law because (like eating, drinking, and sleeping) that's what they are supposed to do; those who disobey the law are perceived as insane -- and dealt with accordingly.

<< I admit your mellifluousness, but don't take that as a license to drastically change content and leave out necessary links should you choose to rewrite something. >>

That was never my intent. In fact, I was very careful not to eliminate any links when I drafted my previous rewrite of the article. Rather, I attempted to eliminate redundancy and create a wholly new article which would serve as a logical and flowing framework for the integration of the various ideas found in this ongoing discussion. Clearly, my previous attempt did not meet with your approval, but I am inclined to believe that you and I are now finding a great deal of common ground. Such is bound to be the case when one allows for the passage of time and the involvement of additional Wikipedians in the editing process.--NetEsq 6:01pm Sep 9, 2002 (PDT)

People have complained that I play semantical games: semantics is all you have to play when criticizing a definition. I think the definition needs to make clear that the scope of the law varies from jurisdiction to jurisdiction; just because some Jews can't cook their pasta the way I like to, this doesn't mean that generally the law governs and defines the cooking of pasta. In fact, the wide variation of rules among cultures is one defining feature of the law in general. And yes, I consider kosher law to be law.

<< I think the definition needs to make clear that the scope of the law varies from jurisdiction to jurisdiction. . . . >>

Agreed.--NetEsq 9:56pm Sep 9, 2002 (PDT)

Do we really need to separate "law (academic)" from law in the general societal sense? Its the same law, just different approaches to it--professors study it, lawyers practice it, ordinary people interact with it--but its the same phenomena (unlike laws of nature, or arguably even religious laws). Maybe what we need is to divide the article up into (1) the nature of law, the role law plays in society (approaching it from a philosophical or sociological perspective), and (2) the substantive content and procedures of law. Areas like legal history or comparative law belong in both (1) and (2), depending on whether they are looking at law from a high-level or a low-level. (e.g. comparison of law in the Soviet Union vs. the law in Western countries belongs in (1), since it goes to deeply differing social attitudes about law; comparison of the common law concept of torts to the civil law concept of delicts belongs in (2), since its not a "fundamental" difference in the sense that (1) is.)

The problem with creating an article called "law (academic)" is that every encyclopedia article is going to want to integrate expert academic opinion into it. (As I understand it, we are placing no limits on how in depth a treatment we give.) -- SJK

<< Do we really need to separate "law (academic)" from law in the general societal sense? >>

Of course not. I've never seen a scholarly discussion of the law take this form, and I don't see any benefit to it. Rather, I have repeatedly expressed my disapproval of this increasingly disjointed organizational scheme, and I remain baffled as to why more Wikipedians aren't expressing their disapproval. In any event, there was litte or no support for taking the article in such a direction, and I for one would welcome a return to a more logical flow of ideas, such as the one that you have suggested. -- NetEsq 4:50am Sep 13, 2002 (PDT)

I think it's important to disambiguate the article. The purpose of doing so is to create side topics for valid ways of defining law which are different from law as a secular social process. Law is different from physics for example where the academic disciple tracks the subject matter. While jurisprudence at its best studies the role of a legal system in society, generally the study of law is of the content of the law and and of procedures for effectively practicing law, not about the role law plays in society.

As it stand now the main portion of the article is about the nature of law and its role (repeated in two version) with substantive law and procedure present only as links. Probably that should be expanded. Fred Bauder

<< I think it's important to disambiguate the article. The purpose of doing so is to create side topics for valid ways of defining law which are different from law as a secular social process. >>

But you have failed to garner any support for this position, a key ingredient in the advancement of a collaborative writing process. Moreover, your attempt to distinguish "secular law" from various other types of law has no basis in scholarly research.

<< Law is different from physics for example where the academic disciple tracks the subject matter. While jurisprudence at its best studies the role of a legal system in society, generally the study of law is of the content of the law and and of procedures for effectively practicing law, not about the role law plays in society. >>

I wholeheartedly disagree. Law as an academic discipline is extremely standardized, at least in the United States. To wit, students are assigned readings in case law, and they are tested on their knowledge of the law by way of written essay examinations wherein they are required to analyze fact patterns to identify legal issues and apply the case law to those issues. Moreover, courses in jurisprudence are a staple in most law schools; integrated into all law school courses is the role law plays in society. In striking contrast, the practice of law is generally *NOT* taught in law school, which is why most law school graduates are eager to get a job with a law firm where they can continue doing legal writing and research while concomitantly learning the practice of law. -- NetEsq 11:18am Sep 13, 2002 (PDT)

I'm generally in aggreement with NetEsq here; while there might be some valid reasons for partitioning "law" into more than one discipline, this is not generally done in either academic settings or legal settings today that I'm aware of. In the few law classes I've had, at least, we discussed the sociological aspects and origins of law, history and cases, and mechanical things like calendaring, Shepherdizing, writing pleadings. Those may be very different things, but they're all studied as "law", and are too closely intertwined to be easily divided up. --LDC

I agree I's a sorry solution; the way we got here is trying to deal with ambiguous use of the concept of law. Perhaps the solution is to no longer try to deal with ambiguous use of the term and simply take a common sense approach and insist on it. Fred Bauder

I have reduced the dubious disambiguation and removed the following paragraph:

In its most general sense, the law is an institution which defines and governs all human affairs. In the context of a particular culture or society, the law may take many forms, the most common form being a formal legal system which is established and enforced by a state authority.

In its most general sense, the law is an institution which defines and governs all human affairs. because it has no basis in fact. and In the context of a particular culture or society, the law may take many forms, the most common form being a formal legal system which is established and enforced by a state authority. because the content is expressed in the preceeding material. Fred Bauder

There is no doubt in my mind that you believe your assertion that the definition which you deleted had "no basis in fact," but it is not an accurate assertion, nor is it an assertion which finds any support in the discussion found on this talk page. Rather, you have gradually eliminated the best portions of this article and substituted in your own inferior and inaccurate recapitulations while ignoring the feedback and criticism of other contributors. Ironically enough, this strategy of steamrolling over other contributors has created an article which is so awful as to be indefensible. -- NetEsq 4:04pm Sep 13, 2002 (PDT)

The assertion you mention has found plenty of support on this very talk page, by me. AxelBoldt

I stand corrected, but my reading of your objections was that my definition was overly broad, not that it had "no basis in fact." -- NetEsq 8:01pm Sep 13, 2002 (PDT)

Ok, NetEsq, what is the basis for this statement: In its most general sense, the law is an institution which defines and governs all human affairs.? Where in literature on law, society or government or in any theory of jurisprudence can you find a similar statement? or in the alternative, how does it conform to events in the world? I can imagine such as statement about fate, or God, but not about a legal system. Fred Bauder

"The rule of law is the defining mark of our humanity, installing locally what the logos furnishes universally." The Philosophy Resource Center - The Stoics, the Rule of Law, and Ancient Rome

From that same page: The Stoic worldview is one of a rationally governed universe of material entities, each answering to its controlling principle ("logos") and thus participating in the overall cosmic "logos." In its most developed form, Stoicism takes the lawfulness of the cosmos as the model on which human life is to proceed.

So "logos" is revealed as Law (principle). And your statement as based on that principle. Worthwhile and interesting but inappropriate as a general definition in an article on comtemporary Law.

Again: According to the Stoics, the cosmos is ruled by law, which is evidence enough of a rational principle behind all natural phenomena.

Again the focus is on a principle, in the context of a philosophical theory about the nature of reality, which is to say, off the point here. Fred Bauder

A brief survey of various authoritative works on jurisprudence will substantiate my claim: Start with Plato (who first posited the rule of law), then move on to the Stoics (who asserted that not only human affairs, but the cosmos themselves were defined and governed by law), then move on to Hobbes (who in Leviathan posited the law as the most essential element of human culture), then move on to the works of the various legal anthropologists which have been cited by other contributors herein, then move on to Ronald Dworkin and his theories about natural law, then move on to the works of various Biblical scholars who discuss the law as an expression of the will of God. Once you've completed this survey of basic jurisprudence, review the substantial support that my definition received from other contributors herein.--NetEsq 8:19pm Sep 13, 2002 (PDT)

I haven't been involved in this article until now, but it looks like it's time to be. The article as it stands is awful; a rare, but obvious, case of the total failure of our system here to acheive constant improvement. Along those lines, I rewrote the dictionary-like entry law (principle) so that it's at least coherent, and we can remove that section entirely--it clearly has no place here except as a link. I'll work on the rest soon. --LDC

My thought now is to see what Lee comes up with at least initially. We can get back to head-butting later. Fred Bauder

<< So "logos" is revealed as Law (principle). And your statement as based on that principle. Worthwhile and interesting but inappropriate as a general definition in an article on comtemporary Law. >>

You originally asked, "Where in literature on law, society or government or in any theory of jurisprudence can you find a similar statement?" And I cited a textbook example of a similar statement in an authoritative summary of classic jurisprudence, which you are now attempting to use as support for your various misguided attempts at disambiguation. On this note, "while there might be some valid reasons for partitioning 'law' into more than one discipline, this is not generally done in either academic settings or legal settings today."

As I stated earlier, there is no doubt in my mind that you believe in the correctness of your various assertions, but the revisions which you have made to this article have been confusing and inaccurate. Moreover, these revisions have been made off the top of your head, without due consideration for the objections of others and without substantial scholarly or popular support for your position, much less a general consensus of the contributors here. The result has been "a rare, but obvious, case of the total failure of our system here." -- NetEsq 5:39am Sep 14, 2002

Zealously argued, the problem is that your excellent lawyerly skills are out of place here. Zealous argument for a particular, even eccentric point of view is appropriate on the talk page but when it goes over to the article itself it must fail. The theories of law held by the ancients have alas been superceded by a pragmatic approach which examines carefully what laws, lawyers, and courts actually do as a part of society. I am afraid you have read too many Great Books and your head is full of Great Ideas. They need to go into articles on Plato, Logos, Hobbes, etc. Fred Bauder

<< Zealously argued, the problem is that your excellent lawyerly skills are out of place here. >>

I fail to see the relevance of my "excellent lawyerly skills." Rather, what I see is someone who is skilled at redirecting an argument to an irrelevant assertion whenever his position becomes untenable.

<< Zealous argument for a particular, even eccentric point of view is appropriate on the talk page but when it goes over to the article itself it must fail. >>

A totally irrelevant statement, one which sets up a straw man argument and assumes that which it hopes to prove. My viewpoint is not eccentric. Moreover, I have limited my remarks to the talk page. In striking contrast, you have moved from one untenable position to another and used the main article as your personal sandbox.

<< The theories of law held by the ancients have alas been superceded by a pragmatic approach which examines carefully what laws, lawyers, and courts actually do as a part of society. >>

You asked for a reference; I gave you several, with authorities from antiquity to the present. Now you are attempting to impeach me by mischaracterizing all of my authorities as being from antiquity. Or would you consider the work of Ronald Dworkin, who currently teaches jurisprudence at Oxford University, to be the "work of the ancients"?

<< The theories of law held by the ancients have alas been superceded by a pragmatic approach which examines carefully what laws, lawyers, and courts actually do as a part of society. >>

I wholeheartedly disagree. The theory and practice of law are hopelessly intertwined. Moreover, any examination of conflicts of law presumes a familiarity with the theories of law held by the ancients, as well as the theories of law in contemporary primitive cultures, the philosophical underpinnings of kosheric law, etc., etc., etc. At the same time, civil procedure is probably the most useful area of the law one can study when it comes to modern legal practice in the United States, which is why I made a point of taking advanced courses in complex litigation and federal jurisdiction during my third year of law school, as well as a clinical in civil rights litigation where as a Certified Student Attorney I was able to "examine carefully what laws, lawyers, and courts actually do as a part of society."

<< I am afraid you have read too many Great Books and your head is full of Great Ideas. They need to go into articles on Plato, Logos, Hobbes, etc.>>

Your patronizing tone betrays your own limited scholarship. Even so, I am more than willing to collaborate with you, provided you let someone else take the lead in editing the law article. I think we can both agree to let LDC be that someone else. -- NetEsq 12:07pm Sep 14, 2002 (PDT)

I have problems with this sentence:

Law attempts to balance individual rights and social control, which are viewed as being inversely related, and is enforced by a system of criminal justice.

Although it sounds reasonable to me, it is a normative claim and a particular view of "law." Is the claim that "law" in every society does this? Who makes this claim? It violates NPOV unless it is attributed. Slrubenstein

Interesting. In the United States at least law attempts to guarantee individual rights as well as acting as an intrument of social control. One might conceive of the Bill of Rights as an attempt at social control of governmental action. Courts sometimes use the language of balance in deciding conflicts between rights and control, but since individual rights are often contitutionally based it takes great weight of need for social control to overbalance them as usually the law in conflict is statutory law. The alternative view is that individual rights are absolute and not subject to a balance test. (But one may always find some extreme example where it will break down). Anyway this notion of balancing one thing against another is only one way of deciding conflict. Fred Bauder 15:54 Jan 14, 2003 (UTC)

I also reverted one change to this sentence, that claimed that "In civil society, Law attempts to balance etc" Law is an instrument and institution of the state, not civil society. I do not understand how the term is being used here. Any explanation? Slrubenstein

I think the state might fairly be characterized as an institution of civil society, thus its intitutions are also institution of civil society at a higher level of abstraction. Fred Bauder 15:54 Jan 14, 2003 (UTC)

By the way, I did not edit the sentence because although it is somehow not quite right I'm not sure how I would say it differently or better. Clearly law does frequently resolve conflicts of this nature routinely. Fred Bauder 15:54 Jan 14, 2003 (UTC)

I am a guy who put "in civil society". I think that sentence is talking about laws in legitimate civil society. Laws can be used for limiting or even talking away individual rights. I advocate laws ought to attempt balance between freedom of individuals and the power of state but it is not necesarry reality. -- Taku 16:35 Jan 14, 2003 (UTC)

I am sorry Taku and Fred, but the way you are using "civil society" is simply contrary to the way it is used in political science and political theory. Hegel introduced the terms with a very clear distinction that people have been making ever since. The State and Civil Society refer to different social institutions. The state certainly is not part of civil society; state + civil society = modern political society. Law is not a civil society institution either.

Please recall that earlier I expressed my own objection to the sentence, which I think violates NPOV. I would be all for deleting it, but I wanted to give the original author a chance to respond. If one or all of us can come up with a way to improve it, that would be great. But "civil society" isn't the answer.

"legitimacy" is another political theory term, but it too is not directly related to civil society. I do think, Taku, that you could qualify the sentence by saying "In the case of legitimate states..." Personally, I have mixed feelings about the utility of the concept of legitimacy (The problem is, there is no universal/.objective criteria for legitimacy), but I know I am in a minority among political theorists here, and perhaps it does communicate more effectively the valid point you were trying to make. You could also say something more specific, like "Only in democratic societies," or "Only in societies that value civil rights." What do you think of these phrases?

By the way, you would still have NPOV issues -- my question is always, "according to whom?" Slrubenstein

OK, considering:

Law attempts to balance individual rights and social control, which are viewed as being inversely related, and is enforced by a system of criminal justice.

There is general movement in modern times to establish human rights as exemplified by the Universal Declaration of Human Rights and outlined in our articles human rights and individual rights. This has resulted in codification of rights in various formats, constitutions, the United States Bill of Rights and in statutory law. In some countries these right are enforceable, (and perhaps more significantly are a part of the culture). So a brief statement of this as a part of law with appropriate reference is appropriate. Slrubenstein is correct about the use of civil society I believe. I also believe use of the language about balancing is inappropriate. Rights can also be viewed as guaranteed and not subject to diminution by being balanced against social good (execpt when the good served for some good reason trumps the right). So Taku, why don't you try to write something and intigrate it into the article which briefly outlines the role of law in establishing and guaranteeing individual rights with some links to other wikipedia articles. (trying to avoid improper use of "civil society" and avoiding any particular method of judicial interpretation such as balancing). Fred Bauder 14:12 Jan 15, 2003 (UTC)

good comments, Fred -- I just want to add that I have no objection to a discussion of "balancing" as long as it is:

properly attributed: whose view is this?
properly contextualized historically (where and when did it develop? Why?)
properly contextualized theoretically (who has argued against this view? What are conetmporary alternate views?)

Slrubenstein

Continued at Talk:Law