Natural law versus legal positivism in the nation of Tagg

¶ … 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 and legal rights of all Tagg inhabitants that are born free and equal. 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 of Education expanded to include all citizens, the level of Freedom of Speech ostensibly was reduced as more censorship through the media and in press releases seemed to be more pronounced.

According to The Chronicle of Higher Education (2005), "Whether it's a Summers, a Churchill, or a worker cleaning a toilet, everyone should have the right to express any and all opinions. The freedoms of thought and speech should be protected universally, for all people. If we make the rights of free speech and thought dependent on context, and give an administrative body the power to judge in which context the right applies, we're ultimately handing over more power to the state." (The Chronicle of Higher Education, 2005)

Right to Bear Arms

The right to bear arms is a fundamental and inalienable right to self-defense against a volatile opponent or dangerous enemy. The right to bear arms is the means to which a society is able to enforce and prevent opposing societies from prevailing militarily and instilling their own religious beliefs onto the surviving and quite possibly enslaved population.

According to Snyder (1997), "The right to own firearms, and the ability to exercise the right to self-defense which gun ownership provides law-abiding citizens, is at least as beneficial to society as is the private ownership of motor vehicles. Maybe even more so. To my knowledge, it has not yet been demonstrated that auto ownership stops crime, but we have demonstrated that private gun ownership stops crimes millions of times each year in the United States." (Snyder, 1997)

According to Waldmeir (2008), "The U.S. Supreme Court appears ready to rule that Americans have a constitutional right to keep a gun in their home for self-defense, a ruling that could help Republicans in the upcoming presidential election. At issue in the case is the constitution's second amendment, which includes ambiguous language about gun rights. It says "a well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." (Waldmeir, 2007)

The right to bear arms is fundamental to the protection of the freedom of religion. Whether the right to bear arms is prevalent in contemporary Tagg civilization is not a matter of question. The right to bear arms is not a mandate TO bear arms. The right remains the right to bear arms to defend one's other inalienable rights should an outside force threaten to usurp one's inalienable right.

Unreasonable Search & Seizures

According to Schultz (2005), "The Patriot Act is not the first law to threaten individual privacy and personal security. Efforts to restrain illegal government searches are the subject of this brief and lively book written by former Senate Watergate chief counsel, the late Sam Dash. (Schultz, 2005) Unreasonable search and seizures are a classic violation of life, liberty, and the pursuit of happiness. Such actions from the state against its citizens are an unprovoked attack that seeks to determine whether there is an underground revenue base operating under the nose of the government. The government is a revenue source that seeks to increase revenue from tax." (Schultz, 2005)

According to York (2003), "The Fourth Amendment prohibits "unreasonable searches and seizures, and an investigative traffic stop is a seizure within the meaning of the Fourth Amendment. The United States Supreme Court has expressed a preference that people conduct searches and seizures pursuant to a warrant. Circumstances exist, however, in which police may conduct warrantless searches and seizures." (York, 2003)

Unreasonable searches and seizures are inherently forbidden by law unless there is justifiable cause to detain and search a home or a vehicle on the premise of illegal activity. In all other cases, it is mandatory for law enforcement to obtain a search warrant to legally search the property of a private citizen.

According to Collins (1984), "Justice White, author of the majority opinion, began by stating the governing principle that had been consistently followed n fourth amendment cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. The rationale for this principle was said to be that a judge, not an agent of the government, should decide when an individual's right to privacy gives way to the government's right to search." (Collins, 1984)

According to Herman (2006), "Herman (law, Brooklyn Law School) analyzes the Sixth Amendment and why it is still in the process of intense and conflicting interpretation 215 years after its ratification. Unlike other Amendments, the Sixth contains conjoined rights in describing both a speedy and a public trial. She begins with the right to a public trial, describing the history of the concept and analyzing the development of the right state of the law today with attention to national security and military commissions, then describes the history of the right to speedy trial and analyzes it through Supreme Court cases, the statutes and rules, and the state of the law today." (Herman, 2006)

The right to a speedy and public trial by an impartial jury of your peers on the Island of Tagg provides the right of the accused to clear their name in a speedy process whilst providing the plaintiff a fast remedy to the offense should the accused be in violation of the law. The process of obtaining a speedy and public trial is often just that, a long process that actually does not yield a speedy trial by an impartial jury of your peers, quite often, the jury is partial unless the defense team thoroughly analyzes the jury and chooses not to adjourn the current jury and call for a new jury.