Statement Of Individual Rights For A Nation Term Paper

Length: 10 pages Sources: 8 Subject: Business - Law Type: Term Paper Paper: #38300364 Related Topics: Positivism, Jurisprudence, Search And Seizure, Property Rights
Excerpt from Term Paper :

¶ … Individual Rights for a Nation

Introductory Supporting Analysis

The legal and political philosophical principles that ostensibly will advance the Nation of Tagg and its political establishment are the focus of the first section of this paper. The Nation of Tagg utilizes a democratic republic form of managing the body politic via the use of popular determinism. The question as to whether Natural Law or Legal Positivism as a philosophical approach to law making within Tagg will be critically analyzed.

The Theory of Natural Law is derived from the notion that an overlap does exist between morality and the law of the land. However, the relevance of natural law has been questioned by contemporary philosophers to whether such a theory can merge into a complex and modern society that thrives on the existence of a large 'grey area', an overlap, between morality and law.

According to Carr (2002), "To modernize natural law, that is, to make it current, Braybrooke thinks it necessary to make it both secular and empirical, and he believes it possible to discover such a theory in Aquinas by foregrounding certain elements of Thomistic doctrine and deemphasizing or ignoring others. A secular and empirical natural law theory, it turns out, is constituted by a set of rules that serve to meet human needs and make possible the thriving of individuals and society." (Carr, 2002)

Carr makes the argument according to the thoughts of Braybrooke that the secular and empirical movement within natural law seeks to modernize the theory into a contemporary format capable of acceptance by the body politic. The details of the changes to the purview of natural law are described. According to Carr (2002), "Since prescription is the flip side of description in naturalistic ethics, he thinks it also legitimate to say that these rules ought to be accepted and followed in order to guarantee individual and societal thriving. The rules gain empirical support by looking to basic human needs and acknowledging their obvious importance for human well-being. Since human beings require basics like food, shelter, and security, it is necessary to build a social support system capable of providing these goods, and the rules necessary for the continued success of this social enterprise are presumed by Braybrooke to qualify as natural laws." (Carr, 2002)

Braybrooke poses an argument that ostensibly is not egalitarian in nature it is rather socialist and seeks to limit the thriving of the unit at the expense of ensuring that the whole is able to thrive. This is a misuse in the philosophy of natural law, by declaring that it is morally obligated upon society to ensure that all are provided with the basics including food, shelter, and security.

Under natural law however, the Elders and the Leaders of the Island Nation of Tagg do not necessarily need to be concerned or worrisome with regard to the influences from the outside world onto Tagg and its political establishment. Natural law in its overlap of morality, seeks to establish and maintain morality simply by its overlap. The outside world is somewhat populated with legal positivism, which ostensibly is the influence to which the Elders and the Leader are concerned.

The history of the Island Nation of Tagg is that of its individual tribes' and subsequent cultural beliefs, all of which would lose identity and subjugate meaning should the island decide to conform to legal positivism. Natural Law Theory is the ideal philosophy that will prevent the tribal customs and identity from being compromised as well as prevent the influence of outside society from engaging and changing the philosophy of the Nation of Tagg.

Legal Positivism as described by Tamanaha (2001), "In the course of reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified." (Tamanaha, 2001) This quote is extremely important as it describes what can happen to the function of law and the idea of morality as requiring protection under the law when considering the societal and tribal beliefs and customs are a function of the collective morality of the Island Nation of Tagg.

Legal Positivism poses a risk to this natural order by altering the framework of natural law and creating an 'outsider' framework of law that is based on the tenets of legal positivism and not of Natural Law. Legal positivism will undermine the inherent and inalienable...


Additionally, legal positivism is a move onto a larger global stage. This global stage is not tribal-based nor is there a global custom or tradition. These aspects of Tagg culture will be inherently compromised by electing to apply legal positivism rather protect the current framework of natural law.

According to Priel (2006), "The distinction between law and the theory of law stands at the basis of some of the most influential recent defenses of legal positivism and is shared by m any positivists and what was perhaps hart's implicit view, we will conclude that the theory of law necessarily requires reliance on evaluative considerations whereas knowing what the law is necessarily, or at least contingently, does not. It might then be thought that in that case I do not engage the legal positivists' arguments, because legal positivists are concerned exactly with this question. But this is a mistake: Andrei Marmor, for instance, argued that all legal positivists adhere to the thesis that "determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations." (Priel, 2006)

The argument is lucid. The use of legal positivism will undermine the Island Nation of Tagg and its inherent cultural heritage including tribal customs. It is understood that the island development of oil shale reserves as a fossil fuel for export to international markets will bring foreign companies as well as tourism to the island. The day-to-day makeup of the island will become different with the merging of outside cultures and ways of life with the island body politic and its inherent cultural mores, the rule of natural law will remain the governor of behavior on the island.

According to Riley (1997), "In the words of the influential theorist of legal positivism, the Austrian-born jurist Hans Kelsen, law is only "a system of coercion-imposing norms which are laid down by human acts in accordance with a constitution." Laws have nothing to do with morality, according to Kelsen: "Any content whatsoever can be legal: there is no human behavior which could not function as the content of a legal norm." (Riley, 1997)

Riley put forth additional research that facilitates the argument for natural law. According to Riley (1997), "It would be hard to exaggerate Kelsen's impact on the law in Europe and America. Though he taught at Harvard and UC Berkeley, where his ides remain part of the intellectual ferment, he was not merely a professor: He wrote the Austrian constitution adopted after the fall of the Hapsburg Empire. More significantly, the legal positivism that he and other theorists propounded gave theoretical undergirding to the Nazi regime." (Riley, 1997)

Conclusively, Riley (1997) continues to say, "Here, a little-known drama arises. Gustav Radburch, a brilliant courtroom lawyer, legal philosopher and minister of justice in the Weimar Republic, had been perhaps the foremost legal figure in Germany between the wars. His prestige alone was capable of legitimizing legal positivism, the philosophy he preached. However, seeing the fruits of legal positivism in the Nazi system of law, he began rethinking his jurisprudence. When at last he was freed from the silence the Nazis had imposed on him, Radbruch dramatically renounced legal positivism and became a widely heard champion of natural law." (Riley, 1997)

The Island of Tagg will renounce to know that legal positivism has been linked to all dictatorships and societies where the government was known oppressors whilst the natural law is associated with despot type leadership, one of equality and justice, and not fascism (Riley, 1997). The move from natural law to that of legal positivism will enable the framework of societal-based morality to obfuscate such that laws will create a binding framework that has no relation to morality.

Part II

Statement of Individual Rights

Freedom of Speech

Freedom of speech is the most precious inalienable right within any so-called Democratic Republic. According to Borgwardt (2008), "In 1941, President Franklin Roosevelt asserted that "four essential human freedoms" should apply "everywhere in the world": Freedom of speech and religion, and, most radically, freedom from fear and want." (Borgwardt, 2008)

Freedom of Speech is inherently responsible for preventing the ruling class from enslaving the working class. In any society, the difference between the ruling class and the working class is wealth and political power, not education. Freedom of Speech in society can be substituted for Freedom of Education, which is the inalienable right to an education. Freedom of Education was not a freedom in the U.S. until the middle 20th century. As the Freedom…

Sources Used in Documents:


Borgwardt, E. (2008). FDR's four freedoms as a human rights instrument. Magazine of History, 22(2), 8-8-13. Retrieved from

Carr, C.L. (2002). Political theory: Natural law modernized. The American Political Science Review, 96(4), 799-799. Retrieved from

Collins, J.W., & Hurd, S.N. (1984). Warrantless administrative searches: It's time to be frank again. American Business Law Journal (Pre-1986), 22(2), 189-189. Retrieved from

Junning, L. (2010). Freedom of religion: The primary human right: The world does not belong to caesar. Chinese Law & Religion Monitor, 6(2), 41-41-46. Retrieved from
Legal theory; legal positivism and conceptual analysis; proceedings; v.1. (2008). Reference and Research Book News, 23(1), n/a. Retrieved from
Priel, D. (2006). Trouble for legal positivism. Legal Theory, 12(3), 225-225-263. Retrieved from
Riley, P. (1991, Jul 22). COLUMN RIGHT / PATRICK RILEY thomas' nod to natural law is no crime the founders cited 'the laws of nature and of nature's god'; modern justice has gone astray. Los Angeles Times (Pre-1997 Fulltext), pp. 5-5. Retrieved from
Schultz, D. (2005). The intruders: Unreasonable searches and seizures from king john to john ashcroft. Choice,42(5), 934-934. Retrieved from
Snyder, J.M. (1997). The integrity of the individual citizen: The right to bear arms. Vital Speeches of the Day,63(9), 266-266-269. Retrieved from
Tamanaha, B.Z. (2001). Socio-legal positivism and a general jurisprudence. Oxford Journal of Legal Studies,21(1), 1-1. Retrieved from
The freedoms to speak your mind and define your own ethnicity. (2005). The Chronicle of Higher Education,51(43), B.13-B13. Retrieved from
The right to a speedy and public trial. (2006). Reference and Research Book News, 21(4), n/a-n/a. Retrieved from
Waldmeir, P. (2008, Mar 19). Supreme court set to back right to bear arms. Financial Times, pp. 6. Retrieved from
York, J.A. (2003). Search and seizure: Law enforcement officers' ability to conduct investigative traffic stops based upon an anonymous tip alleging dangerous driving when the officers do not personally observe any traffic violations. The University of Memphis Law Review, 34(1), 173-173-197. Retrieved from

Cite this Document:

"Statement Of Individual Rights For A Nation" (2011, June 19) Retrieved November 28, 2021, from

"Statement Of Individual Rights For A Nation" 19 June 2011. Web.28 November. 2021. <>

"Statement Of Individual Rights For A Nation", 19 June 2011, Accessed.28 November. 2021,

Related Documents
Individual Rights PPT Individual Rights
Words: 1203 Length: 4 Pages Topic: Government Paper #: 44083171

No electoral college would be used to prevent individuals from making a direct selection of representation. Slide 5: Infrastructure Public office must be dedicated first and foremost to the maintenance of infrastructure. In an island nation which is both advantaged and disadvantaged by its geographical isolation, such issues as meteorological patterns and contention with population needs are key to the quality of life and preservation of individual rights which are of

Individual Rights for the People
Words: 1838 Length: 6 Pages Topic: Government Paper #: 9734439

The enforcement of the law will also be dependent upon public jury trial and civil court case proceedings, which will be intended to devise the conditions by which a dispute between citizens or between state and citizen has come to pass and the conditions by which justice can be restored to any given scenario. It is the right of the people to see that the system of laws in place

Right to Bear Arms in
Words: 2834 Length: 8 Pages Topic: Law - Constitutional Law Paper #: 30967963

The framers did not mention police departments or other local governmental units, which has led to some misconceptions about the right of people to arm themselves when protected by municipal government agencies. However, this is because municipal police forces, as they currently exist, did not exist at the time of the Revolutionary War. The closest approximation was a standing army or militia, and the concerns about the citizenry failing

Right to Bear Arms -
Words: 1794 Length: 5 Pages Topic: Law - Constitutional Law Paper #: 50612314

5.0 Conclusion As this paper has argued, the Second Amendment was designed not only to protect the militias; it was also intended to protect an individual's right to own and bear arms. Those groups opposed to the private ownership of firearms should base their arguments on their own personal beliefs rather than a Constitutional interpretation defense. As supported by its historical background and analysis of Constitutional context and meaning, "A well

Individual Project - Ethics Individual
Words: 1965 Length: 4 Pages Topic: Business - Ethics Paper #: 53315997

S. minimum wage standards. As the above scenarios illustrate, it is impossible to rely upon a single moral theory when developing a corporate code of ethics. This is because each individual brings his or her own personal perspective about ethics, so that each theory is biased by personal perspective. While Kohlberg's Model of Cognitive Development attempts to incorporate these differences, it fails to answer the question of whether or not individuals

Rights of Individuals
Words: 1053 Length: 3 Pages Topic: Criminal Justice Paper #: 16288381

Protecting Liberty Individual rights Bill of Rights defines the protections afforded individual citizens under the Constitution against excessive government intrusions into private lives and arbitrary prosecutions. These rights are contained in the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Since these Amendments were first adopted by the ratifying states the courts have interpreted the intent of each and created rules that attempt to keep the government from running roughshod