Program for the 1790s
Mike Curtis
>Mike Curtis in his reply to my reply to his reply, etc., has more than
>doubled my post of 115 lines to a post of 246 lines, in the
I was commenting on your comments to my post. Like the post you
totally ignored of Sinclair's you do the same thing with this one. I'm
surprised you didn't start a new thread. Instead you snip everything.
So I guess that you can't deal with what I supplied like you couldn't
deal with your distortion of Levy and your distortion of Gordon Wood.
Here you prove to this group that you have no further comment on the
subjects at hand.
>inflationary manner of Mr. Sinclair; he has added an additional
This is not adding to the discussion Mr. Schulman.
>crosspost to alt.history.colonial; and he has declared that he is not
Yes, I did because I read this group more often. I also posted there
because I was discussing post colonial and colonial matters that I
thought might be of interest to the readers of that group.
>interested in addressing the topic I posed at the beginning of this
>thread, "Program for the 1790s" -- said topic being denounced as a
>"diversion."
You do not get to select the topics you want to discuss. I was
commenting on your comments above that diversionary tactic. Snipping
it all doesn't make it go away. I suggest you re-evaluate your
tactics.
>But has Mr. Curtis meanwhile introduced anything new to the discussion
>that would make it worth my time, and readers', to merit comment in
>detail? Unfortunately not. The entire burden of Mr. Curtis's latest
>polemic against natural law can be summarized in two points:
It wasn't a polemic against natural law. I tell you that views on what
is natural law and what it consists of changed with time and is
different depending on culture. Rather than deal with what I presented
you snip it and go off on a distortion of what my argument is. Since
this stuff presented below is not my argument I see no reason to
comment on your presented fictions.
>Regarding point 1), the Nuremberg prosecutions by the Allies were
>based on natural law and international conventions based on natural
>law. It is nice that Germans also conducted some prosecutions of their
>own citizens under German positive law. But (a) these laws did not
>cover all crimes against humanity that were committed; (b) had Germany
>had no applicable positive laws, the crimes still by right should have
>been punished, which could only have been done under principles of
>natural law or its derivations in international law or Geneva
>conventions; (c) positive law itself, if not to be arbitrary, must
>itself be based on higher order ethical principles, that is,
>principles of natural law.
This is not my argument. The Nazis violated German law period. That is
what they were tried on in trials held by the allies and themselves.
It has nothing to do with either of your distortions presented above.
Let's add a group to this since you want to really go out of the scope
of this newsgroup and bring in some experts. Alt.revisionism is added.
>Regarding point 2), objective criteria do indeed exist for regarding
>one society as superior to another. Such criteria include development
>in science, economy, government, and morality. A society may not be
>equally developed in all these criteria, however. To flout common
>sense on this matter as Mr. Curtis indeed does is tantamount to saying
>that a cannibal society is on a moral plane with our own.
This is a total misstatement of my view. But then you snipped it
rather than deal with it in its place. That's dishonest and unethical
debate. But the really interested readers can decide.
[snip]
You can't deal with the above honestly then why should I care what you
suggest?
as algernon sidney wrote:
Liars ought to have good memories.
Discourses on Government. Chap. ii. Sect. xv.
Mike Curtis
Mike Curtis
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Subject: Re: Program for the 1790s
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Richard A. Schulman <RichardAS...@att.net> wrote:
>Jeff Sinclair:
>>>>"Natural Law", as has already been pointed out to you, comes to be
>>>>accepted as "natural" by the members of a particular society or
>>>>tradition based upon the sum experiences of a particular people in a
>>>>particular setting, and are thus not universal. Thus while, for
>>>>example, Eskimo or Aleut societies may think it natural in one setting
>>>>that the elderly go off to die when they are no longer productive to
>>>>the group, the Chinese cultural tradition may also think it natural
>>>>that the elderly be treated with reverence and be supported...
>
>Richard Schulman:
>>>The same historical Eskimo or Aleut societies had no less imperfect
>>>understanding of the laws of the physical and biological world.
>
>Mike Curtis:
>>They had a different view of the world. Perfection has nothing to do
>>with it,
>
>In so declaring, you put yourself firmly in the cultural relativist
>camp, which refuses to regard any one society as more advanced morally
>and/or scientifically than any another.
I don't know where I fit. I don't think it has value to pigeon-hole
people.
> You also commit yourself to an
>epistemology and jurisprudence that would not have had any basis for
>prosecuting German war crimes at the end of WWII. Weren't the
>defendants just following the customs of German society, which
They were not following the customs of German society. What was done
by the Nazis was illegal in their own country. You seem to forget that
there were also trials of WW2 criminals in Germany by Germans, The
Auschwitz trial of the 1960s in one of those trials. Two books will
explain to you that the crimes committed by the Nazis were not
customary or legal. One of those was written by German historians for
the Auschwitz Trial and is called _Anatomy of the SS State_ by Martin
Brosztat, et al., Walker & Company, New York, 1965, 1972. Another
example is _Nazi Justiz - Law of the Holocaust_ by Richard Lawrence
Miller, Praeger, New York, 1995. Another that just came to mind is
_Nazi Doctors_ by Lifton which makes a fine case and brings on example
to mind. The other books are written to cover the subject completely
so there is no one place to quote from. In all three books is the T4
program. It was not customary in Germany to murder diseased children,
retarded children, or play murder in the name of Eugenics. The Nazis
(possibly not all) accepted it as the proper thing to do to begin
making the master race pure. A large segment of the German population
rejected this and nearly rioted over it. Hitler "closed" the program
publicly and then took it under ground to continue.
>dictated unquestioning obedience to legal superiors?
That wasn't the only excuse made. Plus the Fuehrer principle was not a
facet of German custom. Kershaw's recent biography of Adolf Hitler
tells the history of the development of this principle by the Nazi
party and how it fit in to the needs of German society at that time.
>This is a very infelicitous position for one who considers himself to
>be a strenuous opponent of Holocaust denial.
I don't think you'd possibly understand the history or my take on the
holocaust. However, I see your personal attacks above as typical of
your style when you know nothing about the history you want to comment
on.
>Schulman:
>>>I think the Eskimo/Aleut case proves just the opposite from what you
>>>are trying to make of it. The Eskimaux didn't want their aged to
>>>wander off into the blizzard; it was a sad necessity imposed on them
>>>by the poverty of their material technique.
>
>Curtis:
>>No. Certain native American tribes practiced the same thing. It was an
>>understood custom. It was a natural consequence of life. Science had
>>nothing to do with it.
>
>How is a custom of the elderly extinguishing themselves before their
>natural death "a natural consequence of life"?
It was to them. That's the key point. You may not understand it but
that really doesn't matter for they did. Europeans went into Indian
villages and found no signs of spiritualism. They found nothing in
writing and no Bible. They did see what they interpreted as pagan
rituals. The saw totems. They misunderstood what the shaman was. They
interpreted a culture based on the one they understood and failed to
see what was really going on within these human beings. You do the
same thing.
> By your logic there
>could have been no objection to the arguments of the concentration
>camp commandants that those who could no longer work for their crust
>of bread should be gassed to death.
That's a diversion and it also is _not_ the same thing.
>Schulman:
>>> As man's mastery over
>>>nature and his own nature increases, he creates the conditions by
>>>which the intrinsic dignity of each human, included the aged, can be
>>>realized.
>
>Eskimo:
>>So you think they were cruel and wrong. Fascinating. Seems our culture
>>shares a different perspective of what is right and wrong.
>
>I don't think the Esquimaux were cruel and wrong; it is their
>conditions that were cruel vis-a-vis their level of material culture.
But then _they_ might disagree with you.
>By virtue of greater knowledge and a superior material technique, we
LOL! The New England Indians lived in villages with streets. They
burned the forest now and then to clear away the under brush. The
English didn't understand this. They would have huts on the rivers and
also on the shores and within those huts would heat up rocks and throw
water on them. The English didn't understand the steam bath and
thought it was dirty. 98% of the drugs we have in our medicine cabinet
they had in theirs or had a compliment to it. One quick example is
cranberry roots which were a kind of aspirin. A fine book on this
topic is by Howard S. Russell called _Indian New England Before the
Mayflower_, New England, 1981.
>are in a better position to live our lives in accordance with natural
>law than the Esquimaux were, if we so choose.
Not all cultures would agree with you. And you actually call me a
relativist? Maybe I don't know what the term means exactly but you
seem to be making more relative judgements based on other cultures
with yours than I am.
Other good b ooks of interest are _At the Dawn of Tyranny: The Origins
of Individualism, Political Oppression, and the State_ by Eli sagan
who looks at various "lost" tribes and there cultures to find that
they had some horrific practices to the European eye they had a civil
society in the terms of their culture and customs.
>Schulman:
>>> That intrinsic worth has been there from the beginning of
>>>human time in all societies; it just couldn't be realized either for
>>>reasons of ignorance or the compulsion of poverty.
>
>Curtis:
>>So now these people are ignorant or simply poor. Do you think that the
>>Eskimos or other native Americans thought of themselves as poor in
>>those times?
>
>They certainly did when they encountered European society.
So you say, but being a reader of most all sources on the early
Eastern Tribes I do not agree. Every group of people tend to see
themselves as "civilized" and compare themselves self-righteously with
their neighbors or those they come in contact with. The Greeks used
the term *barbarian* to indicate outsiders. An historian, W. R. Jones,
in an article in _Studies in Society and History, XIII (1971), 377,
writes "The antithesis which opposed civilization to barbarism was a
highly useful cliche, and one which served equally well as a means of
self-congratulation and as a rationalization for aggression." The
English colonizers of Africa and Nazis would later make use of
Herbert Spencer's bastardization of Darwin ("Survival of the fittest.)
to give further rationale of the inferiority of those they were
colonizing. Richard II used the words "wild Irish" in speaking about
those he wanted to conquer.
You somewhat remind me of Lewis Henry Morgan, an American
Lawyer-ethonologist, who wrote a famous work on the Iroquois Indians.
"Torn between his sympathy for the Indians and his contempt for their
condition, Morgan recognized that they were not the savages of crude
popular myth, but he was equally certain of the inferiority of their
culture to his own. Thus he put them between the bottom and the top
and gave their intermediate position the name of barbarism, which had
earlier been synonymous with savagery as a term for debasement.
Searching for empirical criteria with which to distinguish one stage
from another, Morgan fixed upon literacy as the invention that had
created civilization. The highest stage of human development, he
wrote, had begun with the phonetic alphabet.
. . . Morgan could not suppress ethnocentric pride. His major
theoretical work ended with an overt declaration of racial elitism:
'It must be regarded as a marvelous fact that a portion of mankind
five thousand years ago, less or more, attained to civilization. In
strictness but two families, the Semitic and the Aryan, accomplished
the work through unassisted self-development. The Aryan family
represents the central stream of human progress, because it produced
the highest type of mankind, and because it has proved its intrinsic
superiority by gradually assuming the control of the earth.' "
[From _The Invasion of America_, Francis Jennings, Norton, 1975, pages
6-10 passim.]
What is civilized or not seems to be in the eye of the culture making
a judgement on another with biases and perceptions that more than
likely are faulty and not based on a real understanding of those they
are judging.
>Schulman:
>>> With a richer
>>>material culture than the Eskimo, the Chinese were in a position to
>>>venerate their elderly. A happily constituted society will, of course,
>>>value its members of all ages, not just the children, or the
>>>middle-aged, or the seniors.
>
>Curtis:
>>It wasn't always a consequence of
>>western society who used to think it natural to destroy female babies.
>
>This still occurs in underdeveloped societies where the sole means of
>support for parents unable to work is an abundance of male children.
So you make excuses for that which was once natural and now is not.
What was once natural is now not natural so the example stands as an
example of changing morals and views of the natural world.
>Schulman:
>>>Man has an enduring aspect that does not change from society to
>>>society or age to age, contrary to the view of the relativist who sees
>>>*only* variability. Man is a social being whose power over nature
>>>increases in proportion to the division of labor among his members and
>>>the value placed upon the creative contribution each individual is
>>>able to make. The division of labor is both natural (by sex and age)
>>>and social (by occupation and interest).
>
>Curtis:
>>The native Americans were pretty attached to nature so I think you are
>>missing something in your logic.
>
>Being attached to nature is not the same thing as having mastery over
>it through science and technology.
But the Indians did have mastery over it. They had far more mastery
than their European counterparts who would have to be taught by them
and then relearn what the natives already knew. Midwives and other
women who grew herbs tended to learn much from the natives who
understood the various plants of the environment far better than the
newly arrived Europeans.
[snip attempt to divert]
Rick Gardiner
> >that would make it worth my time, and readers', to merit comment in
> >detail? Unfortunately not. The entire burden of Mr. Curtis's latest
> >polemic against natural law can be summarized in two points:
>
> It wasn't a polemic against natural law. I tell you that views on what
> is natural law and what it consists of changed with time and is
> different depending on culture.
This is more buffoonery on Curtis's part. Curtis continues to maintain
that Natural Law changes with time and culture, which is the exact
antithesis of the very definition of natural law! (http://www.newadvent.org/cathen/09076a.htm)
Curtis might as well have said "a constant is the variable that changes"
> >Regarding point 1), the Nuremberg prosecutions by the Allies were
> >based on natural law and international conventions based on natural
> >law. It is nice that Germans also conducted some prosecutions of their
> >own citizens under German positive law. But (a) these laws did not
> >cover all crimes against humanity that were committed; (b) had Germany
> >had no applicable positive laws, the crimes still by right should have
> >been punished, which could only have been done under principles of
> >natural law or its derivations in international law or Geneva
> >conventions; (c) positive law itself, if not to be arbitrary, must
> >itself be based on higher order ethical principles, that is,
> >principles of natural law.
>
> This is not my argument. The Nazis violated German law period. That is
> what they were tried on in trials held by the allies and themselves.
> It has nothing to do with either of your distortions presented above.
> Let's add a group to this since you want to really go out of the scope
> of this newsgroup and bring in some experts. Alt.revisionism is added.
You entirely skirted Mr. Schulman's point here. Mr. Schulman has
correctly stated that even if there were no written laws which
condemned the Nazi activity, it would still have been wrong. Are you
willing to deny that?
You claim that the Nazis violated German law, and that is why they
were prosecuted. So, if Hitler and the German authorities had
re-legislated all the activity of the Nazis as within the pale of
legal activity, you would then say "Oh, well, they're exterminating
Jews, but, well, it's within their laws, so it is okay."
That is not only a philosophically bankrupt position, it really
demonstrates your claim of being anti-Nazi to be quite superficial.
Now, regarding your words--
> The Nazis violated German law period. That is
> what they were tried on in trials held by the allies and themselves.
It amazes me that you are not familiar with the Nuremberg Charter
which claims that the Nazis would be prosecuted for "crimes coming
within the jurisdiction of the Tribunal for which there shall be
individual responsibility... in connection with any crime within the
jurisdiction of the Tribunal, WHETHER OR NOT IN VIOLATION OF THE
DOMESTIC LAW OF THE COUNTRY WHERE PERPETRATED"
Also "The fact that the Defendant acted pursuant to order of his
Government or of a superior shall not free him from responsibility."
http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm
further, "the very essence of the Charter is that individuals have
international duties which transcend the national obligations of
obedience imposed by the individual State."
http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm
So, "German law period"?? I don't think so.
Oh, by the way, Alison-- what is the relationship of this topic of
natural law at Nuremberg to the American founding? Perhaps you should
read the sentiments of the American Nuremberg Justice, Robert Jackson,
who states at Nuremberg: "We stand on the principle of responsible
government declared some three centuries ago to King James by Lord
Chief Justice Coke, who proclaimed that even a King is still 'under
God and the law.'" (http://www.yale.edu/lawweb/avalon/imt/jack01.htm)
The upshot of it is that Natural Law embraced by the founders is quite
similar to the principles upon which Nazi criminals were prosecuted in 1946.
(In case you are uninformed, Lord Coke was a chief conduit of Common
Law principles which Jefferson borrowed to write the Declaration).
mscu...@my-deja.com
Gard...@pitnet.net wrote:
> Mike Curtis wrote:
[snipped insults]
And all the examples I gave have suddenly been deleted. That's not very
honest of you, Mr. Gardiner, but this group probably doesn't expect
much of that from you any longer.
[rest of the distortions of my positions and the postiions of others
ignored. Why bother?]
Sent via Deja.com http://www.deja.com/
Before you buy.
Scott D. Erb
Rick Gardiner wrote:
> This is more buffoonery on Curtis's part.
Actually, while you call names and attack others, Mike offers real historical analysis that I've
personally found very useful. I have learned to distrust your claims simply because of the fact
you attack and villify those who dare disagree with you, even when, like with Mike and Jeff, they
offer considerable content.
It would be better if you'd show some respect for their obvious knowledge and intelligence; maybe
then I could take your claims seriously. I never know if I can believe you or not, given your
uneven record and your obvious lies..
For example:
> You claim that the Nazis violated German law, and that is why they
> were prosecuted. So, if Hitler and the German authorities had
> re-legislated all the activity of the Nazis as within the pale of
> legal activity, you would then say "Oh, well, they're exterminating
> Jews, but, well, it's within their laws, so it is okay."
>
> That is not only a philosophically bankrupt position, it really
> demonstrates your claim of being anti-Nazi to be quite superficial.
Here you dishonestly make it seem like Mike was claiming that if the Nazis hadn't violated Nazi
law they would have done nothing wrong. MIKE NEVER MADE THAT CLAIM. You know that. In fact,
your tactic -- to lie, put words in another person's mouth, then attack them in the vicious way
you do -- is more reminiscient of Goebbels. I find myself repulsed by such obvious unethical
argumentation.
Oh, and by the way, it is not necessary to believe in natural law to support the development of a
code of international human rights, or to support the trying of people for crimes against
humanity. And many natural law theories have nothing to do with religion. I suspect you mock
people because you're afraid of really dealing with the philosophical issues -- not just quoting
what the founders believed or citing old philosophers (citing others doesn't take creative
intellectual muscle), but actually debating the issues at stake. I really don't know if you have
the ability to do that, but if you wish, we could discuss natural law.
cheers, scott
Richard A. Schulman
>> You entirely skirted Mr. Schulman's point here.
Mike Curtis:
>And all the examples I gave have suddenly been deleted. That's not very
>honest of you, Mr. Gardiner, but this group probably doesn't expect
>much of that from you any longer.
Don't blame Mr. Gardiner. I too deleted your examples because they
proved nothing and were the n + 1st rehash of a spurious argument that
has been criticized n times before. Your spurious argument is based on
the notion that the existence of different customs among peoples
disproves the existence of natural law. That argument has no more
basis than the belief that contradictory cosmological conceptions
among pre-modern societies disproves the existence of scientific
cosmology.
I note that you and your cohorts, desperate to recruit some congenial
flāneur to bail you out of your intellectual difficulties, have now
added three crossposts to my original call in
soc.history.war.us-revolution for a discussion of what national
program in the 1790s would best have overcome regional differences,
emancipated the slaves short of civil war, and built up U.S. military
strength vis-a-vis France and Britain.
---
Richard Schulman
Remove antispamming XYZ for email reply
PGP id: 0xAFB852BF
Richard A. Schulman
>> You claim that the Nazis violated German law, and that is why they
>> were prosecuted. So, if Hitler and the German authorities had
>> re-legislated all the activity of the Nazis as within the pale of
>> legal activity, you would then say "Oh, well, they're exterminating
>> Jews, but, well, it's within their laws, so it is okay."
>>
>> That is not only a philosophically bankrupt position, it really
>> demonstrates your claim of being anti-Nazi to be quite superficial.
Scott Erb:
>Here you dishonestly make it seem like Mike was claiming that if the Nazis hadn't violated Nazi
>law they would have done nothing wrong. MIKE NEVER MADE THAT CLAIM. You know that. In fact,
>your tactic -- to lie, put words in another person's mouth, then attack them in the vicious way
>you do -- is more reminiscient of Goebbels. I find myself repulsed by such obvious unethical
>argumentation.
Mr. Curtis is constantly denying his own statements or their immediate
implications. For example, Mr. Curtis posted a scholarly quote which
showed that international law, war conventions, and the Nuremberg
prosecutions derived from earlier natural law writings by Grotius et
al. Ever since then, Mr. Curtis has been at pains to deny what his own
posted quote affirms.
Mr. Gardiner has simply pointed out what Mr. Curtis would have to say
regarding crimes not defined by positive law IF HE WERE CONSISTENT
(which of course we all know he isn't).
As usual you, Mr. Erb, instead of being honest about the basis of Mr.
Gardiner's argument, have added your gratuitous, inflammatory, false,
and non-substantive rhetoric to the thread, as you have done a hundred
times before.
mscu...@my-deja.com
> >> You claim that the Nazis violated German law, and that is why they
> >> were prosecuted. So, if Hitler and the German authorities had
> >> re-legislated all the activity of the Nazis as within the pale of
> >> legal activity, you would then say "Oh, well, they're exterminating
> >> Jews, but, well, it's within their laws, so it is okay."
> >>
> >> That is not only a philosophically bankrupt position, it really
> >> demonstrates your claim of being anti-Nazi to be quite superficial.
>
> Scott Erb:
> >Here you dishonestly make it seem like Mike was claiming that if the
Nazis hadn't violated Nazi
> >law they would have done nothing wrong. MIKE NEVER MADE THAT
CLAIM. You know that. In fact,
> >your tactic -- to lie, put words in another person's mouth, then
attack them in the vicious way
> >you do -- is more reminiscient of Goebbels. I find myself repulsed
by such obvious unethical
> >argumentation.
>
> Mr. Curtis is constantly denying his own statements or their immediate
> implications.
I do not deny my own statements, however your snipping of my statements
is dishonest as is your reforming my argument into a fashion making me
say what you want me to say. In other words, you lie.
> For example, Mr. Curtis posted a scholarly quote which
> showed that international law, war conventions, and the Nuremberg
> prosecutions derived from earlier natural law writings by Grotius et
> al.
Which was a small piece of two separate posts. You ignored the post
giving URLs directly to the Blue Books of the trial and the arguments
made by the proecutors. However, you chose not to deal with that and
rather support a passage from a far larger book to make your whole
argument. That passage was presented to show that, yes, certain aspects
of natural law philosophy was used and that it was used in a specific
manner.
> Ever since then, Mr. Curtis has been at pains to deny what his own
> posted quote affirms.
That quote isn't the whole issue, Mr. Schulman, but also your claim
that the Nazis didn't violate German law or customs. I moved on to show
that they did do that. And, as you most often do, you snipped it and
reframed the argument.
> Mr. Gardiner has simply pointed out what Mr. Curtis would have to say
> regarding crimes not defined by positive law IF HE WERE CONSISTENT
> (which of course we all know he isn't).
No, Gardiner's point wasn't about this but rather a distortion of your
distortion concerning German law violations by the Nazis. It had
nothing to do with the Nazis violating their law which was new law not
based on German traditions or customs.
> As usual you, Mr. Erb, instead of being honest about the basis of Mr.
> Gardiner's argument, have added your gratuitous, inflammatory, false,
> and non-substantive rhetoric to the thread, as you have done a hundred
> times before.
And you, rather than be honest about the discussion would rather
distort it and then, as every reader in this group can see, go directly
to ad hominems. Now deal with the native American material which is on-
topic to the discussion of natural law, civilizations and customs. What
you should have done was admit you are over your head and saved us all
a lot of time.
--
Mike Curtis
Rick Gardiner
>
> Rick Gardiner wrote:
>
> > This is more buffoonery on Curtis's part.
>
> Actually, while you call names and attack others, Mike offers real historical analysis that I've
> personally found very useful.
I note here that you did not refute the facts upon which I based my
assessment above.
> > You claim that the Nazis violated German law, and that is why they
> > were prosecuted. So, if Hitler and the German authorities had
> > re-legislated all the activity of the Nazis as within the pale of
> > legal activity, you would then say "Oh, well, they're exterminating
> > Jews, but, well, it's within their laws, so it is okay."
> >
> > That is not only a philosophically bankrupt position, it really
> > demonstrates your claim of being anti-Nazi to be quite superficial.
>
> Here you dishonestly make it seem like Mike was claiming that if the Nazis hadn't violated Nazi
> law they would have done nothing wrong. MIKE NEVER MADE THAT CLAIM. You know that. In fact,
> your tactic -- to lie, put words in another person's mouth, then attack them in the vicious way
> you do -- is more reminiscient of Goebbels. I find myself repulsed by such obvious unethical
> argumentation.
1) I note that you don't dare to defend Mike's claim that "The Nazis
violated German law, PERIOD. And that is why they were prosecuted."
2) Mike has taken the position that there must be positive law (e.g.,
written), in order to prosecute. The point Mr. Schulman made, and I
agree with, is that even if there were no international treaties,
etc., the atrocities of Hitler would still be criminal. Under what?
Under the only thing left--natural law. Perhaps you will take the view
that if there were no treaties, then what Hitler did was okay. I'll
wait to see what you say.
I know this. The basis of the Nuremberg Prosecutions was Grotius'
natural law theories.
> Oh, and by the way, it is not necessary to believe in natural law to support the development of a
> code of international human rights, or to support the trying of people for crimes against
> humanity.
Explain.
> And many natural law theories have nothing to do with religion.
Perhaps. But most do. http://www.newadvent.org/cathen/09076a.htm
> I suspect you mock
> people because you're afraid of really dealing with the philosophical issues -- not just quoting
> what the founders believed or citing old philosophers (citing others doesn't take creative
> intellectual muscle),
It's called the discipline of history. You ought to learn a little
about it.
RG
Rick Gardiner
>
> [rest of the distortions of my positions and the postiions of others
> ignored. Why bother?]
Right on. So I guess your "the Nazis violated German law, Period"
gambit has embarrassed you to the point that you have to hide.
I understand.
RG
mscu...@my-deja.com
>
> Mike Curtis:
> >And all the examples I gave have suddenly been deleted. That's not
very
> >honest of you, Mr. Gardiner, but this group probably doesn't expect
> >much of that from you any longer.
>
> Don't blame Mr. Gardiner. I too deleted your examples because they
> proved nothing and were the n + 1st rehash of a spurious argument that
> has been criticized n times before.
That's not why you did it. You did it because you couoldn't address it.
That's your history. You also made a silly claim that I was claiming
that there were no "superior cultures" or civilizations. I was only
suggesting that they were different. Your argument is over superiority
and since you could deal with the examples you deleted them in order to
frame my argument in your fashion.
> Your spurious argument is based on
> the notion that the existence of different customs among peoples
> disproves the existence of natural law.
No, that is not my argument. My argument was that different cultures
and customs result in different views of what is natural in nature.
What different cultures view as naturally legal is different because of
their experiences in nature and with other people.
> That argument has no more
> basis than the belief that contradictory cosmological conceptions
> among pre-modern societies disproves the existence of scientific
> cosmology.
It has a lot of basis among athropologists and those who write the
histories of the Indian Wars in this country. The attitudes you post
are much the same attitudes used by those who felt it was right to
destroy civilizations because they were better. That's why you snipped
my post also.
> I note that you and your cohorts, desperate to recruit some congenial
> flāneur to bail you out of your intellectual difficulties, have now
> added three crossposts to my original call in
You call is to refight the Federalist political battle with the
Jeffersonians. A battle the Federalists lost. A battle they waged to
avoid war with Britian while beating war drums over France.
> soc.history.war.us-revolution for a discussion of what national
> program in the 1790s would best have overcome regional differences,
> emancipated the slaves short of civil war, and built up U.S. military
> strength vis-a-vis France and Britain.
I suggest you attend alt.history.what-if. I believe there is such a
group to play fictional history.
Scott D. Erb
Rick Gardiner wrote:
No, you don't. You distorted Mike's point and tried to claim that somehow
it meant Mike was saying that if it hadn't violated German law what Hitler
did was OK. Obviously that does not follow from anything Mike claimed,
and your attempt to assert it did was a distortion meant to attack. It
also meant you ignored most of Mike's argument, trying to use that ad
hominem as your sole response. Most would easily see that you had dropped
the debate and used a logical fallacy as your only response, and you'd
have lost. I doubt that such tactics work with many readers, and I think
Mike realizes that and knows that you shot yourself in the foot with your
response.
Rick, I can't figure out why you do it. Its like you're trying to be mean
to pick fights with those whose point of view you disagree with, rather
than trying to communicate. WHY?
Scott D. Erb
Rick Gardiner wrote:
> 1) I note that you don't dare to defend Mike's claim that "The Nazis
> violated German law, PERIOD. And that is why they were prosecuted."
Rick, again, you tried to assert that somehow Mike was taking a position that the only reason the
holocaust was wrong was because it was against German law, and you even questioned Mike's credentials
as being opposed to Nazism. I can't for the life of me understand why you do stuff like that. It
poisons debate, it seems an attempt to denegrate and debase your opponent in an unfair distortion. I
don't disagree with all your views, and sometimes I really think you post some good stuff, but I really
think you need not feel so defensive when people disagree.
> 2) Mike has taken the position that there must be positive law (e.g.,
> written), in order to prosecute. The point Mr. Schulman made, and I
> agree with, is that even if there were no international treaties,
> etc., the atrocities of Hitler would still be criminal. Under what?
> Under the only thing left--natural law.
Here's a tidbit on international law: the main source of international law is NOT treaties or positive
law, but international custom. Natural law is NOT considered a source for international law. Natural
laws, if they exist, may indeed be theorized as a source for international custom, but that is an
academic debate.
> Perhaps you will take the view
> that if there were no treaties, then what Hitler did was okay. I'll
> wait to see what you say.
The above is what I mean: Do you really not see the difference between saying that something cannot
legally be prosecuted and that something was "okay?" Perhaps if you tried honest exchange you could
pursue these issues without hinting that your opponents somehow think Hitler did things that were "OK"
or trying to make it sound like a lack of belief in natural law means that one does not find reason to
condemn Hitler's acts based on humanist ethical principles.
> I know this. The basis of the Nuremberg Prosecutions was Grotius'
> natural law theories.
Grotius' theories were actually a bit more complex. In his famous text on international law William
Slomanson notes: "While there were other intermediate influences on the development of international
law, its modern rootes may be traced to the 17th century Dutch Philosopher Hugo Grotius. He is often
referred to as the 'father of international law.' Grotius's fundamental contribution to the theory of
international law was his insistence upon a voluntary law of nations based upon their consent. That
willingness to observe certain norms was expressly stated in treaties or implicitly drawn from state
customary practices in international matters."
Now, states may have theories of law based on natural law. People work to create international law may
believe in various theories of natural law. But natural law itself is not where international law
comes from directly; it comes from custom, treaty, and voluntary consent.
> > Oh, and by the way, it is not necessary to believe in natural law to support the development of a
> > code of international human rights, or to support the trying of people for crimes against
> > humanity.
>
> Explain.
One can socially construct systems of law and principle without believing that these things are
"natural" or exist in nature. They can be seen as human or social constructs.
> > And many natural law theories have nothing to do with religion.
>
> Perhaps. But most do. http://www.newadvent.org/cathen/09076a.htm
How does one make a "most" statement about something like this? Suffice it to say, that natural law
theories are hard to defend philosophically and can be religious or non-religious.
> It's called the discipline of history. You ought to learn a little
> about it.
Whatever. Yet this thread is also going to groups involved in philosophy and certainly touches on it.
But my main reason for giving my two cents in this debate is anger at how you tried to distort Mike's
position as one where somehow he would say what Hitler did was OK, or that his anti-Nazi credentials
could be questioned. That certainly is not the case, and I think (I hope!) you know that!
cheers, scott
Rick Gardiner
>
> In article <6nm8gsorb2jcda8hh...@4ax.com>,
> > implications.
>
> I do not deny my own statements,
Good. Perhaps you will own these then:
CURTIS:
"Morals are fashioned by man and they have changed depending upon
culture. There is no tree as you want there to be. Is it immoral
because another society believes it takes 5 witnesses to witness a
rape before it is rape? That is moral to them. But you, I suspect,
will sit on your Christian high horse and declare them immoral? Should
they care?"
And another:
GARDINER:
>I said torture was immoral and you said "who says?"
CURTIS:
Exactly. Who says that torture is immoral. where is it written. At
what point is torture torture?
GARDINER
>"Who says" was exactly the response of the Nazi lawyers at Nuremberg
when the
>Nazis were accused of crimes against humanity. They asked "who says killing
>Jews is wrong?"
CURTIS:
The case at Nuremberg was multifaceted. The crimes against humanity
were not simply Jewish based.
GARDINER:
>They insisted it wasn't wrong under German law, and as Germans
>they couldnt be tried under French or English law.
CURTIS:
Because the crime was international and murder. What made murder
immoral? Was it the tale of Cain and Able? Or was something that
happened that resulted in that tale?
GARDINER:
>They were convicted under "natural law"...or what you refer to as morality
>"which grows on trees and has always been the same."
CURTIS:
They were convicted by several judges. Some were not convicted of
crimes against humanity. Some were convicted of conspiracy.
GARDINER:
>Without that "tree-grown" morality the Hitlerites would be not guilty.
CURTIS:
Where's the tree?
----
So your own words are that positive law was necessary for the Nazis to
be condemned. Which brings us right back to the point Mr. Schulman
made. In your opinion, if there had not been treaties signed by the
Germans (?), then the prosecutions at Nuremberg could not have
commenced upon natural law.
Unlike Justice Jackson, our representative at Nuremberg (who took the
view of the American founders, you are a relativist, like Nietzsche
and his Nazi heirs.
RG
Rick Gardiner
>
> Rick Gardiner wrote:
>
> > 1) I note that you don't dare to defend Mike's claim that "The Nazis
> > violated German law, PERIOD. And that is why they were prosecuted."
>
> Rick, again, you tried to assert that somehow Mike was taking a position that the only reason the
> holocaust was wrong was because it was against German law, and you even questioned Mike's credentials
> as being opposed to Nazism. I can't for the life of me understand why you do stuff like that.
>
> law, but international custom.
Thanks for that tidbit. You need to convince Curtis--
CURTIS:
The right of the international community to try them [Nazis] was
justified under many laws. One of those laws was an
old piracy law.
GARDINER
Are you alleging that there was a written law, consented to by Hitler
and his ilk,
that condemned the Nazis at nuremberg??? I don't believe it for a minute.
CURTIS:
There was one. There were several agreements that Germany signed. They
violated them and the charges were based on those treaties.
-----
According to Curtis the main source for the international law that
condemned the Nazis were treaties (i.e., positive law).
> Natural law is NOT considered a source for international law.
DEAD WRONG!
You definitely are not very familiar with Grotius.
Here's an elementary primer: http://www.britannica.com/bcom/eb/article/0/0,5716,115100+12+108549,00.html
RG
Mike Curtis
Where in the above did I use the word "main?" Why do I sense that this
conversation is presented out of context?
>> Natural law is NOT considered a source for international law.
>
>DEAD WRONG!
>
>You definitely are not very familiar with Grotius.
>
>Here's an elementary primer: http://www.britannica.com/bcom/eb/article/0/0,5716,115100+12+108549,00.html
Dr. Erb is dead wrong? Based on an encyclopedia article you found on
the web? Dear me, that is weak.
Mike Curtis
>mscu...@my-deja.com wrote:
>>
>> In article <6nm8gsorb2jcda8hh...@4ax.com>,
>> Richard A. Schulman <RichardAS...@att.net> wrote:
>>
>> > Mr. Curtis is constantly denying his own statements or their immediate
>> > implications.
>>
>> I do not deny my own statements,
>
>Good. Perhaps you will own these then:
>
>CURTIS:
>"Morals are fashioned by man and they have changed depending upon
>culture. There is no tree as you want there to be. Is it immoral
>because another society believes it takes 5 witnesses to witness a
>rape before it is rape? That is moral to them. But you, I suspect,
>will sit on your Christian high horse and declare them immoral? Should
>they care?"
I wrote that in a certain context. I think the context was this
morality tree you couldn't find. Morals are human creations.
>And another:
>
>GARDINER:
>>I said torture was immoral and you said "who says?"
>
>CURTIS:
>Exactly. Who says that torture is immoral. where is it written. At
>what point is torture torture?
Right. where does it say torture is immoral? In context I brought up
the torture carried out by Christians against their enemies, It all
depends upon the society and the context. To our society torture is,
well, not really the right thing to do but I suspect we've been guilty
of it.
>GARDINER
>>"Who says" was exactly the response of the Nazi lawyers at Nuremberg
>when the
>>Nazis were accused of crimes against humanity. They asked "who says killing
>>Jews is wrong?"
>
>CURTIS:
>The case at Nuremberg was multifaceted. The crimes against humanity
>were not simply Jewish based.
>
>GARDINER:
>>They insisted it wasn't wrong under German law, and as Germans
>>they couldnt be tried under French or English law.
>
>CURTIS:
>Because the crime was international and murder. What made murder
>immoral? Was it the tale of Cain and Able? Or was something that
>happened that resulted in that tale?
I see I have to spell it out for you. I had two trials in my mind at
the time. One was the Belsen Trial which was carried out by the
British and was mostly concerning crimes against humanity. The
Nuremberg Trial was not about crimes against humanity. It wouldn't
become a factor until Rudolf Hoess was called by the defense of
Kaltenbrunner. Then the shock would set in. Still the US tried to
steer clear of the crimes against humanity case. The Belsen Trial used
the matter of expectation of protection if one was taken prisoner by
the enemy. However, these ere civilian inmates guarded by the
military. Civilians that really shouldn't have been prisoners in the
first place. I can post the prosecution argument if you would like.
>GARDINER:
>>They were convicted under "natural law"...or what you refer to as morality
>>"which grows on trees and has always been the same."
>
>CURTIS:
>They were convicted by several judges. Some were not convicted of
>crimes against humanity. Some were convicted of conspiracy.
>GARDINER:
>>Without that "tree-grown" morality the Hitlerites would be not guilty.
>
>CURTIS:
>Where's the tree?
Where is the tree?
>----
>
>So your own words are that positive law was necessary for the Nazis to
I didn't use the phrase positive law.
>be condemned.
A lot of laws condemned them. Not just a specific type. They violated
German custom, constitutional law, common law, military law and
international law.
> Which brings us right back to the point Mr. Schulman
>made. In your opinion, if there had not been treaties signed by the
>Germans (?), then the prosecutions at Nuremberg could not have
>commenced upon natural law.
They would have commenced on the treaties and the various laws listed
above. Not all were a matter of natural law but international
agreements.
>Unlike Justice Jackson, our representative at Nuremberg (who took the
>view of the American founders,
Citation?
> you are a relativist, like Nietzsche
>and his Nazi heirs.
Nice, Gardiner, nice.
Mike Curtis
>mscu...@my-deja.com wrote in message <8e1tag$r78$1...@nnrp1.deja.com>...
>>In article <80_M4.15068$jZ3.1...@nuq-read.news.verio.net>,
>> "Martin McPhillips" <cay...@nyct.net> wrote:
>>> Mike Curtis wrote in message ...
>>> >Richard A. Schulman <RichardAS...@att.net> wrote:
>>
>>> Not in the least. The total force of any culture is directed first at
>>> survival
>>> in accordance with law (whether that law take the form of custom, or
>>> rules, or judgement of the most qualified or most powerful). What
>>> Schulman is attempting to say, and has said very well, in a half-dozen
>>> different ways all pointing to the same fundamental truth, is that
>>> the general sense of truth, *a* general finding of justice, is what
>>> all cultures strive for,
>>
>>Show me where he's saying that.
>
>That's the general sense I'm taking away from what he has
>been writing about in his posts. If he disagrees with that interpretation,
>he can correct it.
I haven't seen it.
>>He's talking about superiority and who
>>is better than whom. The lost tribes in Africa and from the polynesian
>>Islands had laws and justice. So did the American natives have laws,
>>customs and justice.
>
>No one has said that they didn't.
However, they are not as superior to our modern enlightened views or
culture and he has said this in so many words.
>>> and that this is not in the least suggestive of
>>> a purely cultural determination. What it does suggest is that natural
>>> law is both pervasive and elusive, and that all cultures are in fact
>>> using it as a basis for their individuated systems.
>>
>>This is not waht I see him saying.
>
>Well, it's my interpretation of what he is saying. If he disagrees
>he can comment.
I'm sure he will. We'll wait and see.
>>> When a culture gets to the point where it can begin to objectify
>>> the concept of "natural law," it has thereby ipso facto reached
>>> a position of higher understanding (if not practice) of the natural
>>> structure of human justice.
>>
>>So what makes one society have a better view of this than another?
>
>How close they get to an objective sense of higher justice. How
Who judges "higher justice?"
>able they are to get beyond static custom or the letter of the law
>with regard to questions that they face.
Many societies do this. Even American native cultures.
>>> When a culture *reverts* to *pure* custom (i.e. turns *back* to simple
>>> positive law), it has in fact gone backwards,
>>
>>Who's perspective are we using here? He says something is backwards?
>>Some old laws and customs worked better than some laws and customs we
>>have now. But this would be going backwards?
>
>What *I* am saying here is that once there is an objective sense of
>natural law, that a *reversion* to *pure* custom (simple *positive*
>static standards), is a step backwards. I think that this is what
>is happening in the West.
I'm trying to discuss history and colonial civilizations and not
modern philosophy. I'm speaking to what is viewed as civilization and
what is not.
>>> and moved to a position
>>> where it turns its back on the sense of higher law and true justice.
>>
>>What is higher law and who judges whether justice is true or not?
>
>Higher law is the greater sense of justice, the greater respect for
>life, both one's own life and the lives of others,
So? 17th-Century Indian cultures had a much higher sense of justice
and view of life than their European counterparts did.
> and the implications
>of that respect as a standard in forming judgements, making laws,
>applying those laws. And who judges? Who judges the person
>who pushes aside an elderly person to more quickly get through
>a door?
Usually no one in our society but I'm not talking about modern
society. I'm talking about judgements made by different cultures
concerning each other.
> People experience things and they make judgements.
>Elders make judgements and set patterns of judgement. Young
>people are taught by elders what is right and wrong, then experience
>and make judgements based on what they are taught, and have
>appeal to their own best sense of what is right or wrong in a
>given situation.
This happens more in some cultures than in others.
>>> It seeks to find a spirit of the law no deeper than the intent of the
>>> letter of the law, losing grip on the transcendent truths of human
>>> justice, the self-evident truths.
>>
>>I was not a part of the orignal argument of natural law. My argument
>>was only dealing with Jefferson's meaning of self-evidence which he
>>took from Reid. I've come back in because Schulman is making judgements
>>on who is superior culturally and this smacks of Spencerian thought.
>>What I saw in his posts was the prime example of the ugly American
>>looking down his nose at people and cultures different from his.
>
>I didn't detect any of that in what he was saying. Not in the way you
>are framing it. If, however, he is saying that Western society has
>benefitted from an objectification of the concept of natural law, and
All societies have. I disagree with his limitations.
>that this lends strength to the Western conceptualization of such
>things as natural and universal rights, then I would agree with that.
Having lived in Asia and Europe I think I garnered quite a sense of
various cultures. The west is not always the best and neither is the
east. We can learn from each other.
[Snip I want to stay away from the modern and stick to the argument I
was making about the past.]
>>> It is the difference between Dred Scott and "all men are created
>>> equal, endowed by their Creator with certain *inalienable* rights."
>>>
>>> The latter is a pure statement of natural law.
>>
>>No, it is not. Jefferson never meant that all mean are created equal in
>>the sense you term it. He meant that all men are created equal to judge
>>what is self-evident. One mistake people make is that Jefferson was
>>claiming that all men are equal at creation civically and politically
>>and economically. He isn't saying that.
>
>"...endowed by their Creator with certain inalienable rights. That
>among these are life, liberty, and the pursuit of happiness."
Those are the three things that are self-evident. But the details are
the problem.
>I'm not sure what you are trying to say. But that statement is
>as close to a statement of pure natural law as there is. It places
No. That goes to self-evident. He also replaced property with
happiness. I wonder if you know why?
>these rights in human nature itself, an endowment of creation,
>realizable by men as their natural place in the world.
Yes, but liberty is not the same for all in his time.
>If men have an underlying right to life,
Sure they do. But what does that mean? The government can take life
away.
> evident in the revelation
>of their own nature, that is a conceptualization of natural law.
Nope.
>The expression of that natural law is found in the customs
>and positive law of virtually all cultures, with a variety of
>manifestations that nonetheless are consistent in the
>basic underlying value.
Nope. It's more complex than that.
>>> The former is a
>>> literal reading of the letter of the law. The entire force of the
>>human
>>> endeavor depends, for its guiding spirit, on natural law.
>>
>>And this natural law is viewed differently from culture to culture.
>>There is not single natural law cross culturally.
>Of course there is. In terms of the higher sense of human identity,
>there is only one humankind, however diverse in its cultural
>manifestations. Humans, as a species, and despite the variety
>of cultural norms, share a remarkable thread of essential
>continuity in their sensibilities.
Who rules what a higher sense is?
Martin McPhillips
>"Martin McPhillips" <cay...@nyct.net> wrote:
>
>>mscu...@my-deja.com wrote in message <8e1tag$r78$1...@nnrp1.deja.com>...
>>>In article <80_M4.15068$jZ3.1...@nuq-read.news.verio.net>,
>>> "Martin McPhillips" <cay...@nyct.net> wrote:
>>>> Mike Curtis wrote in message ...
>>>> >Richard A. Schulman <RichardAS...@att.net> wrote:
>>>
>>>> Not in the least. The total force of any culture is directed first at
>>>> survival
>>>> in accordance with law (whether that law take the form of custom, or
>>>> rules, or judgement of the most qualified or most powerful). What
>>>> Schulman is attempting to say, and has said very well, in a half-dozen
>>>> different ways all pointing to the same fundamental truth, is that
>>>> the general sense of truth, *a* general finding of justice, is what
>>>> all cultures strive for,
>>>
>>>Show me where he's saying that.
>>
>>That's the general sense I'm taking away from what he has
>>been writing about in his posts. If he disagrees with that interpretation,
>>he can correct it.
>
>I haven't seen it.
I think it's pretty clear. I went back and re-read some of his posts,
and Schulman has stated rather explicitly that all cultures, in
formulating individual approaches to custom and law, draw from
the same basic structures of human existence, which structures are
the natural and essential qualifiers of all human law. Harm, killing,
stealing, respect for elders, metaphysical or religious concerns,
sexual mores, all conform, more or less, to natural balances that
cultures of all kinds observe.
>
>>>He's talking about superiority and who
>>>is better than whom. The lost tribes in Africa and from the polynesian
>>>Islands had laws and justice. So did the American natives have laws,
>>>customs and justice.
>>
>>No one has said that they didn't.
>
>However, they are not as superior to our modern enlightened views or
>culture and he has said this in so many words.
Are you saying that he is saying that two views of the same
phenomenon are not inherently equal? If he is, then I agree with
him. But I'm not sure what you are saying.
>>>> and that this is not in the least suggestive of
>>>> a purely cultural determination. What it does suggest is that natural
>>>> law is both pervasive and elusive, and that all cultures are in fact
>>>> using it as a basis for their individuated systems.
>>>
>>>This is not waht I see him saying.
>>
>>Well, it's my interpretation of what he is saying. If he disagrees
>>he can comment.
>
>I'm sure he will. We'll wait and see.
>
>>>> When a culture gets to the point where it can begin to objectify
>>>> the concept of "natural law," it has thereby ipso facto reached
>>>> a position of higher understanding (if not practice) of the natural
>>>> structure of human justice.
>>>
>>>So what makes one society have a better view of this than another?
>>
>>How close they get to an objective sense of higher justice. How
>
>Who judges "higher justice?"
Those who have judgement, which is all persons in whom that capacity
is not impaired. We judge distances, time, meaning, beauty. "Higher
justice" is that from which positive customs and laws are drawn and
the basis on which they are themselves judged. A culture which has
the greater capacity to judge those positive customs and laws against
the *purpose* for which they exist, and is able to more fully recognize
the purpose for the purpose, if you will, is by definition more able
to objectify the essential structures of human existence and understand
what is just and fair and in conformity with higher law.
>>able they are to get beyond static custom or the letter of the law
>>with regard to questions that they face.
>
>Many societies do this. Even American native cultures.
And they do this to find a more just and true foundation for their
judgements, i.e. the basis for the static custom or the letter of the
law.
>
>>>> When a culture *reverts* to *pure* custom (i.e. turns *back* to simple
>>>> positive law), it has in fact gone backwards,
>>>
>>>Who's perspective are we using here? He says something is backwards?
>>>Some old laws and customs worked better than some laws and customs we
>>>have now. But this would be going backwards?
>>
>>What *I* am saying here is that once there is an objective sense of
>>natural law, that a *reversion* to *pure* custom (simple *positive*
>>static standards), is a step backwards. I think that this is what
>>is happening in the West.
>
>I'm trying to discuss history and colonial civilizations and not
>modern philosophy. I'm speaking to what is viewed as civilization and
>what is not.
Well, I'm a little confused by that declaration. But the difference
between civilization and primitive or tribal societies is a fairly
distinct one, in my book. A civilization is a "great society," normally
with a higher religion, encompassing a number of city or nation
states, often many languages, with written records, usually developed
commercial standards, and held together by these commonalities
so as to be distinct from other great societies. There have
been about 21 civilizations in the six thousand years of recorded
history. By contrast there are several thousand tribal societies,
from the Mohawk and Navaho to the Tutsi and Masai.
We speak of Egyptian, or Hellenic, or Islamic, or Western
civilization, and of Mohawk, or Navaho, or Tutsi, or Masai
tribal societies.
>>>> and moved to a position
>>>> where it turns its back on the sense of higher law and true justice.
>>>
>>>What is higher law and who judges whether justice is true or not?
>>
>>Higher law is the greater sense of justice, the greater respect for
>>life, both one's own life and the lives of others,
>
>So? 17th-Century Indian cultures had a much higher sense of justice
>and view of life than their European counterparts did.
Is that your opinion? I think that it's possible, but not likely, that
as a society any *given*17th-Century Indian culture "had a much
higher sense of justice and view of life than their European
counterparts did," and I say that based on what I know about
the conceptual basis of Western society, not on the results of
the conflict between Western society and individual tribal
societies in North America.
>> and the implications
>>of that respect as a standard in forming judgements, making laws,
>>applying those laws. And who judges? Who judges the person
>>who pushes aside an elderly person to more quickly get through
>>a door?
>
>Usually no one in our society but I'm not talking about modern
>society. I'm talking about judgements made by different cultures
>concerning each other.
Well judging different cultures is different from judging how
clearly they observe natural law as the spirit of their customs
and laws. But anyone with judgement can judge such a
thing. I could observe that in the United States that the
area of positive law dealing with criminal sentences is
losing touch with the spirit of higher justice by its dependence
on mandatory sentencing guidelines, or that early on
in the formation of the Republic juries began to lose their
authority *to* positive law and became increasingly only
triers of fact. At the same time, because of the influence
of natural law on its political culture, I doubt that there
is a country more attuned to individual rights.
>> People experience things and they make judgements.
>>Elders make judgements and set patterns of judgement. Young
>>people are taught by elders what is right and wrong, then experience
>>and make judgements based on what they are taught, and have
>>appeal to their own best sense of what is right or wrong in a
>>given situation.
>
>This happens more in some cultures than in others.
I agree.
>
>>>> It seeks to find a spirit of the law no deeper than the intent of the
>>>> letter of the law, losing grip on the transcendent truths of human
>>>> justice, the self-evident truths.
>>>
>>>I was not a part of the orignal argument of natural law. My argument
>>>was only dealing with Jefferson's meaning of self-evidence which he
>>>took from Reid. I've come back in because Schulman is making judgements
>>>on who is superior culturally and this smacks of Spencerian thought.
>>>What I saw in his posts was the prime example of the ugly American
>>>looking down his nose at people and cultures different from his.
>>
>>I didn't detect any of that in what he was saying. Not in the way you
>>are framing it. If, however, he is saying that Western society has
>>benefitted from an objectification of the concept of natural law, and
>
>All societies have. I disagree with his limitations.
All societies have benefitted from an objectification of the concept
of natural law?
>>that this lends strength to the Western conceptualization of such
>>things as natural and universal rights, then I would agree with that.
>
>Having lived in Asia and Europe I think I garnered quite a sense of
>various cultures. The west is not always the best and neither is the
>east. We can learn from each other.
Without doubt.
>[Snip I want to stay away from the modern and stick to the argument I
>was making about the past.]
>
>>>> It is the difference between Dred Scott and "all men are created
>>>> equal, endowed by their Creator with certain *inalienable* rights."
>>>>
>>>> The latter is a pure statement of natural law.
>>>
>>>No, it is not. Jefferson never meant that all mean are created equal in
>>>the sense you term it. He meant that all men are created equal to judge
>>>what is self-evident. One mistake people make is that Jefferson was
>>>claiming that all men are equal at creation civically and politically
>>>and economically. He isn't saying that.
>>
>>"...endowed by their Creator with certain inalienable rights. That
>>among these are life, liberty, and the pursuit of happiness."
>
>Those are the three things that are self-evident. But the details are
>the problem.
>
>>I'm not sure what you are trying to say. But that statement is
>>as close to a statement of pure natural law as there is. It places
>
>No. That goes to self-evident. He also replaced property with
>happiness. I wonder if you know why?
Go ahead and refresh my memory.
>>these rights in human nature itself, an endowment of creation,
>>realizable by men as their natural place in the world.
>
>Yes, but liberty is not the same for all in his time.
Nor were they governed directly by natural law, but the appeals
to those precepts of natural law continue into the present.
How, do you suppose, that happened?
>>If men have an underlying right to life,
>
>Sure they do. But what does that mean? The government can take life
>away.
It means that in formulating positive law, that, chiefly in cases
of where one person takes the life of another, the government
can justly deprive the taker of life of his life. You were referring
to the death penalty?
>> evident in the revelation
>>of their own nature, that is a conceptualization of natural law.
>
>Nope.
That's a fuzzy response. I'll take it as a moment of intransigence.
>>The expression of that natural law is found in the customs
>>and positive law of virtually all cultures, with a variety of
>>manifestations that nonetheless are consistent in the
>>basic underlying value.
>
>Nope. It's more complex than that.
Everything is more complex than it's simplest formulation,
if you want it to be. But I'm confident that you have something
specific in mind.
>
>>>> The former is a
>>>> literal reading of the letter of the law. The entire force of the
>>>human
>>>> endeavor depends, for its guiding spirit, on natural law.
>>>
>>>And this natural law is viewed differently from culture to culture.
>>>There is not single natural law cross culturally.
>
>>Of course there is. In terms of the higher sense of human identity,
>>there is only one humankind, however diverse in its cultural
>>manifestations. Humans, as a species, and despite the variety
>>of cultural norms, share a remarkable thread of essential
>>continuity in their sensibilities.
>
>Who rules what a higher sense is?
Each person, each jury, each elder, each judge, each lawmaker,
each judicial body, each legislature, each individual with judgement.
Generally, a person whose higher sense is that he deserves anything
he wants and takes it and answers every other urge with rape or
murder, that person would be called a sociopath or psychopath.
And, generally, a person whose higher sense is that he must base
each action of his life on the golden rule of love and kindness, must
give each individual the benefit of the doubt, and must bend over
backwards never to take offense, but to understand and love
even his enemy, that person would be called a saint or a buddah.
The rest of us fall somewhere in between.
Rick Gardiner
You said "they violated German law, *period*, and that was what the
prosecutions were based upon. Also, right above here, you said "They
violated *signed agreements* and the charges were based on those
treaties." You didn't say that "some" of the charges were based on
those treaties, and you didn't say that the charges were "in part"
based upon those treaties. You gave the clear implication that the
treaties were the basis of the charges against them.
> >> Natural law is NOT considered a source for international law.
> >
> >DEAD WRONG!
> >
> >You definitely are not very familiar with Grotius.
> >
> >Here's an elementary primer: http://www.britannica.com/bcom/eb/article/0/0,5716,115100+12+108549,00.html
>
> Dr. Erb is dead wrong? Based on an encyclopedia article you found on
> the web? Dear me, that is weak.
Actually, the best evidence is found in Grotius himself. Perhaps I
shouldn't have assumed that you and Erb don't know Renaissance Latin.
So, since you adjudicate the encyclopedia article as below your level
of scholarship, feel free to go to Grotius' works, translate, and
discover that natural law is at the root of international law.
http://herakles.lib.kyushu-u.ac.jp/grotius/f001.htm
RG
Rick Gardiner
> >
> >Good. Perhaps you will own these then:
> >
> >CURTIS:
> >"Morals are fashioned by man and they have changed depending upon
> >culture. There is no tree as you want there to be. Is it immoral
> >because another society believes it takes 5 witnesses to witness a
> >rape before it is rape? That is moral to them. But you, I suspect,
> >will sit on your Christian high horse and declare them immoral? Should
> >they care?"
>
> I wrote that in a certain context. I think the context was this
> morality tree you couldn't find. Morals are human creations.
And on that score you stand at odds with the founders, who believed
that morals are part of the innate (i.e., natural) fabric of the human
constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
and again lately)
> I see I have to spell it out for you. I had two trials in my mind at
> the time. One was the Belsen Trial which was carried out by the
> British and was mostly concerning crimes against humanity. The
> Nuremberg Trial was not about crimes against humanity. It wouldn't
> become a factor until Rudolf Hoess was called by the defense of
> Kaltenbrunner.
It was a factor before the trial even started in the drafting of the Charter.
http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm
> >So your own words are that positive law was necessary for the Nazis to
>
> I didn't use the phrase positive law.
Of course not. Your knowledge of the basic vocabulary and concepts
such as natural vs. positive law is too shallow. So you spoke of
treaties and signed agreements. To the educated, those kinds of
documents refer to man-made, societal laws, known as "positive law" (http://www.britannica.com/bcom/eb/article/0/0,5716,56423+1+55045,00.html)
Again, no charge for the education. Just say thanks.
> > Which brings us right back to the point Mr. Schulman
> >made. In your opinion, if there had not been treaties signed by the
> >Germans (?), then the prosecutions at Nuremberg could not have
> >commenced upon natural law.
>
> They would have commenced on the treaties and the various laws listed
> above. Not all were a matter of natural law but international
> agreements.
treaties are a matter of positive law.
> >Unlike Justice Jackson, our representative at Nuremberg (who took the
> >view of the American founders,
>
> Citation?
http://www.yale.edu/lawweb/avalon/imt/jack01.htm
> >you are a relativist, like Nietzsche
> >and his Nazi heirs.
>
> Nice, Gardiner, nice.
Thanks. I just tell it like I see it.
RG
buc...@exis.net
MORALITY, ANOTHER VIEW
{The full speech can be read at:
http://members.tripod.com/~candst/uwood.htm
There are millions in this country who cannot conscientiously
support any kind of supernatural religion. Have they no rights the Church
is bound to respect? We are told that the views of such are an offence to
God. This is the teaching of theologians. But many things which have been
pronounced by them an offence to God, have in succeeding generations, by
the same class, been discovered to be right so we cannot resist the
conviction that these men who talk so confidently about the will and
wishes of God, as an argument against equal rights and religious freedom,
simply give expression to the will and wishes of their own minds. When they
declare that God is displeased with the omission of his name from the
national Constitution, and that it is his requirement that this government
recognize Jesus Christ as "Ruler among nations," we accept these statements
as evidence that those who utter them, however sincerely, see the spread of
those liberal sentiments that are gradually undermining their spiritual
authority, and that they feel the necessity of securing the aid of the
civil power to guard against the innovations of scepticism and science.
Further those who are in favor of uniting Church and State, after
declaring (what is so evident that none dispute it) that morality is
necessary to the State, coolly assure us that morality depends upon the
Christian religion, and without its light and authority virtue has no fixed
standard, no guarantee, no sanctions. Here we have the real difference
reduced to its last terms between many of those who would Christianize and
those who would secularize the government. Both parties hold to the
importance of good morals. But one believes there can be no true morality
except in connection with Christianity; while the other maintains that
morality is natural and secular, and does not depend for its existence, or
for the practice of its precepts, upon any religion whatever. Thus is
involved in this contest the true nature and the real basis of morality,
without an understanding of which there can hardly be an intelligent
appreciation of the merits of the controversy.
To us nothing is more clear than that morality depends not upon any
system of faith: it requires no miraculous evidence; it is independent of
theological dogma; no supernatural halo can heighten its beauty; no
ecclesiastical influence can strengthen its obligations; it is confined to
no one country, limited to no one age, restricted to no one form of faith,
the exclusive possession of no one class, sect, order, nation, or race of
men; it requires no written decalogue; it needs no single individual
authority; theology can not add to it, neither can it take from it. It has
its indestructible basis in the nature of man, as a feeling, thinking,
acting being, and in society as an aggregation of such beings, with the
manifold relations and the acknowledged rights and duties that spring
therefrom. Empires rise and perish; religions grow and decay; special forms
of civilization appear and give way to other types; but as, amid all the
mutations of human existence, the nature of man remains essentially the
same, and through all these changes the social condition everlastingly
persists, morality can never be without a foundation as broad and deep and
enduring as humanity itself. It changes not, but, as Cicero says, it is
"the same at Rome and at Athens, to-day and to-morrow; alone, eternal, and
invariable, it binds all nations and all times." Its highest standard is
the enlightened reason of man. The better man understands his nature, and
the more he is capable, by reason of intelligence and culture, of
comprehending the object of society and his relations thereto, the better
understanding will he have of the principles of morality.
Theologians could have no ideas of moral qualities, unless they had
discovered them in humanity. They are observed in man, and as in him they
are admired in contrast to the opposite qualities, they are ascribed to
God; and then theologians, having invested God with human qualities and
denied to him what they have borrowed from him with which to invest God
before they could form any conception of him as a moral being, most
ungratefully as well as inconsistently declare there can be no morality
independently of their theological system and book revelation. Of course,
it is nothing to ignore the fact that, before either the one or the other
appeared, society existed and nations flourished essentially the same as
they do to-day!
One would suppose, from the claims which are frequently made, that
there was no morality before the Christian era; that men were entirely
wanting in knowledge of what is right, and the disposition to do it; in
short, that all men were thieves, robbers, and murderers, before they heard
of Jesus Christ. I do not wonder that a system which through its
representatives gives currency to such a falsehood as this wants the aid of
civil power to enforce its teachings.
The morality of the advanced nations to-day is commonly called
Christian morality, but only with the same disregard of truth which is
implied in denying the existence of virtue and goodness before Christ and
outside of Christendom. The morality of this age does nor owe its existence
to any religion, to any book, to any historic character, however much or
little any one of these has influenced mankind. Our present conception of
morality has grown through many centuries of human experience, and exists
now only because by many mistakes and much suffering man has learned its
adaptedness to his wants. It is the result of the combined influence of our
natural character and education. To ascribe it to the dominant religion
were as absurd as to attribute the enlightenment of the ancient Creeks to
their mythology, or the enlightenment of the Saracens of Spain in the ninth
and tenth centuries, when darkness enveloped Christian Europe, to the
Koran. The fact is, with the advancement of the human mind, with the
discoveries in science and progress in morality, believers in all systems
of religion modify their views so as to adjust them to the new order of
things, always claiming, in ancient and in modern times, in Egypt, India,
Rome, Turkey, England, America, that they find authority for the new ideas
or reforms in their sacred books or religious systems. Soon they claim
these religions are entitled to the exclusive credit of having produced the
beneficent change which they have been powerless to prevent. Thus, while
the Bible teaches the subordination of woman in plain and unequivocal
language, sanctions and authorizes human slavery, and condemns to
unresisting submission to their condition the subjects of oppressive
governments, today in this country the Orthodox believers deny the plain
signification of the Bible on these points, and claim that it has been
effective in the destruction of all kinds of political and social bondage;
this, too, in spite of the fact, that its most zealous advocates, within
the memory of men who are yet young, were quoting its texts to show the
wickedness of the reforms which they now have the hardihood to claim as
the outgrowths of that book! Those portions of a religious system or book
revelation which are shown to be false, or which come to be repudiated by
the enlightened moral sense of the age, are either absolutely ignored or
twisted out of their obvious and natural meaning. By keeping in the
background the teachings of the Bible which have been outgrown, by giving
prominence to the precepts of morality which are attached to all systems of
religion, by stamping them all as Christian, although they were known and
practiced before Christianity was ever heard of, theologians impress the
masses with the conviction that the Bible and the Christian religion are
the foundation of all virtue, and the only hope of the world. It then
presents the theological dogmas -- which have nothing whatever in common
with morality (such as that Jesus Christ is Ruler among Nations) --which
indeed have been the faith, the sincere, unquestioning faith of multitudes
of the most cruel and vicious men of all ages since they have been taught,
and demand their acceptance and incorporation in our Constitution from
purely moral considerations! Making all allowance for the fact that
transitional periods such as the present are always characterized by grave
inconsistencies which imply no dishonesty, it is difficult to believe
that, in these common representations regarding Christianity and morality,
there is not a good deal of disingenuousness and selfish disregard of the
rights of those who will not sustain them in the theological views they
advocate.
This much on this point I have thought it right and proper to say,
not for the purpose of discrediting theology or reflecting on its
advocates, but to meet the assertion so commonly made, one which has great
influence with the masses, that Christianity is entitled to recognition and
support by the State on the ground that it is necessary to that morality
without which the State cannot exist. This argument can impose only on the
uninformed or such as are blinded by prejudice and bigotry to the most
unquestionable facts and the most unanswerable logic. There is no argument
worthy of the name that will justify the union of the Christian religion
with the State. Every consideration of justice and equality forbids it.
Every argument in favor of free Republican institutions is equally an
argument in favor of a complete divorce of the State from the Church.
History in warning tones tells us there can be no liberty without it.
Justice demands it. Public safety requires it. He who opposes it is,
whether he realizes it or not, an enemy of freedom. He who sees its justice
and fails to use his influence in its favor is recreant to duty and
unworthy the name of freeman. Those who today when we are about to
celebrate the one hundredth anniversary of American Independence, are
suffering from disabilities, however slight, on account of religious
beliefs, and who are disposed tamely to submit to such an outrage on their
rights as men and citizens, are in disposition spaniels-- a disgrace to the
very name of Freethinker, and utterly undeserving the inheritance which
has come to them from the illustrious dead -- from those, as Carlyle says,
"whose heroic sufferings rise up melodiously together unto heaven, out of
all times and out of all lands, as a sacred Miserere: their heroic actions
also, as a boundless everlasting Psalm of triumph." Every sentiment of
honor, every manly feeling, a righteous indignation at injustice, a
determination to submit to no religious intolerance, love of peace and the
welfare and prosperity of our country, with an ardent and unfaltering
attachment to republican institutions -- all combine to induce us to demand
a separation of Church and State, total and complete, now, henceforth, and
forever." And we ought never to be content, ought never to relax our
efforts until this is effected, and secured beyond peril by Constitutional
Amendment. Whatever is of worth comes by exertion, and whatever is valuable
needs watchful care. "Eternal vigilance is the price of liberty."
Thankful for all the blessings that have been secured to us by the
struggles and sacrifices of our fathers, let us show our gratitude and pay
the debt we owe them to those who shall come after us, by adding to what
we have received in strengthening the foundations of freedom, so that no
fury of religious fanaticism will ever be able to destroy them. Long live
the Republic! May she continue to grow in greatness and grandeur till her
light and glory shall fill the earth!
(SOURCE OF INFORMATION: The Practical separation of church and state,
Parts of a speech by Benjamin F. Underwood, given at the Centennial
Congress of Liberals, July 4, 1876. Cornerstones of Religious Freedom in
America, Edited, with an introduction and interpretations by Joseph L.
Blau. Harper Torchbooks / The Cloister Library, Harper & Row Publishers,
New York, Evanston and London (1949) pp 215-229)
------------------------------------------------------------------------------------------------------------------
**********************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
"Dedicated to combatting 'history by sound bite'."
Now including a re-publication of Tom Peters
SEPARATION OF CHURCH AND STATE HOME PAGE
and
Audio links to Supreme Court oral arguments and
Speech by civil rights/constitutional lawyer and others.
Page is a member of the following web rings:
The First Amendment Ring--&--The Church-State Ring
Freethought Ring--&--The History Ring
American History WebRing--&--Legal Research Ring
**********************************************
Rick Gardiner
>
> MORALITY, ANOTHER VIEW
>
> To us nothing is more clear than that morality depends not upon any
> system of faith: it requires no miraculous evidence; it is independent of
> theological dogma; no supernatural halo can heighten its beauty; no
> ecclesiastical influence can strengthen its obligations; it is confined to
> no one country, limited to no one age, restricted to no one form of faith,
> the exclusive possession of no one class, sect, order, nation, or race of
> men; it requires no written decalogue; it needs no single individual
> authority; theology can not add to it, neither can it take from it. It has
> its indestructible basis in the nature of man, as a feeling, thinking,
> acting being, and in society as an aggregation of such beings, with the
> manifold relations and the acknowledged rights and duties that spring
> therefrom.
Are you going on record as in agreement with this?? If so, I trust
that you are aware that this is a pretty clear formulation of the 19th
century scottish doctrine of natural law.
Note that this author believes that the "natural basis" for morality
is "indestructible."
Are you on record now in support of natural law, Alison? Right on.
RG
Rick Gardiner
>
> Rick Gardiner wrote:
>
> > 1) I note that you don't dare to defend Mike's claim that "The Nazis
> > violated German law, PERIOD. And that is why they were prosecuted."
>
> Rick, again, you tried to assert that somehow Mike was taking a position that the only reason the
> holocaust was wrong was because it was against German law,
What does "they violated German law, period," imply to you?
> Grotius' theories were actually a bit more complex. In his famous text on international law William
> Slomanson notes: "While there were other intermediate influences on the development of international
> law, its modern rootes may be traced to the 17th century Dutch Philosopher Hugo Grotius. He is often
> referred to as the 'father of international law.' Grotius's fundamental contribution to the theory of
> international law was his insistence upon a voluntary law of nations based upon their consent. That
> willingness to observe certain norms was expressly stated in treaties or implicitly drawn from state
> customary practices in international matters."
Grotius scholar Wolfgang Friedman writes, "Since modern international
society is still dominated by the legal and political supremacy of the
national state, Grotius' classical treatise, De Jure Belli Ac Pacis
(http://herakles.lib.kyushu-u.ac.jp/grotius/f001.htm) is still an
essential foundation for international law... 'Natural Law is so
immutable that it cannot be changed by God himself' [writes Grotius in
his De Jure]. The natural law doctrine provided Grotius with the
theoretical foundation for certain overriding principles of order in
the relations between the states. Grotius was, of course, well aware
that there was in his time no law-giving authority superior to the
will of the states. It was, therefore, necessary for him to find some
principle that could bind the nations to a common standard of behavior."
As for your claim that international law is not grounded in natural
law, well, if that's so, then its not grounded in Grotius, because
Grotius is quite clear on this matter.
RG
Mike Curtis
<Gard...@pitnet.net> wrote:
>Mike Curtis wrote:
>>
>> Rick Gardiner <Gard...@pitnet.net> wrote:
>>
>> >> I do not deny my own statements,
>> >
>> >Good. Perhaps you will own these then:
>> >
>> >CURTIS:
>> >"Morals are fashioned by man and they have changed depending upon
>> >culture. There is no tree as you want there to be. Is it immoral
>> >because another society believes it takes 5 witnesses to witness a
>> >rape before it is rape? That is moral to them. But you, I suspect,
>> >will sit on your Christian high horse and declare them immoral? Should
>> >they care?"
>>
>> I wrote that in a certain context. I think the context was this
>> morality tree you couldn't find. Morals are human creations.
>
>And on that score you stand at odds with the founders, who believed
>that morals are part of the innate (i.e., natural) fabric of the human
>constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
>and again lately)
So *I* may disagree with the founders. Big deal. Many people disagree
with the philosophy of the 18th-Century today. I do, in fact disagree
with the conception of innate morals that Jefferson thought there was
in his time.
>> I see I have to spell it out for you. I had two trials in my mind at
>> the time. One was the Belsen Trial which was carried out by the
>> British and was mostly concerning crimes against humanity. The
>> Nuremberg Trial was not about crimes against humanity. It wouldn't
>> become a factor until Rudolf Hoess was called by the defense of
>> Kaltenbrunner.
>
>It was a factor before the trial even started in the drafting of the Charter.
Actually it was not a major facotr in the trials. See Bradley F.
Smith's books on the Nuremberg Trials.
>http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm
The thrust of the trials was conspiracy and aggressive warfare. At the
time the trials at Nuremberg began very little was clear concerning
the concentration camps. If you would bother, just once, to read the
trials and the many books on them you will find what I told you to be
so.
[snipped insults]
>> > Which brings us right back to the point Mr. Schulman
>> >made. In your opinion, if there had not been treaties signed by the
>> >Germans (?), then the prosecutions at Nuremberg could not have
>> >commenced upon natural law.
>>
>> They would have commenced on the treaties and the various laws listed
>> above. Not all were a matter of natural law but international
>> agreements.
>
>treaties are a matter of positive law.
Agreements among nations that have nothing to do with natural law as
was pointed out to you in a post by someone who has a doctorate in
international political science. I'm positive he didn't charge you for
the education either.
>> >Unlike Justice Jackson, our representative at Nuremberg (who took the
>> >view of the American founders,
>>
>> Citation?
>
>http://www.yale.edu/lawweb/avalon/imt/jack01.htm
No mention of framers or foundes in there. If your going to post an
URL it ought to say what you claim, Mr. Gardiner.
>> >you are a relativist, like Nietzsche
>> >and his Nazi heirs.
>>
>> Nice, Gardiner, nice.
>
>Thanks. I just tell it like I see it.
You are seeing things that are not there.
Mike Curtis
Mike Curtis
<cay...@nyct.net> wrote:
But they do not come from the same basic structures of human
existence.
> which structures are
>the natural and essential qualifiers of all human law. Harm,
They are not defined the same in every society.
> killing,
>stealing, respect for elders, metaphysical or religious concerns,
None of these are defined the same in every society.
>sexual mores, all conform, more or less, to natural balances that
>cultures of all kinds observe.
None of these are defined the same in every society.
>>
>>>>He's talking about superiority and who
>>>>is better than whom. The lost tribes in Africa and from the polynesian
>>>>Islands had laws and justice. So did the American natives have laws,
>>>>customs and justice.
>>>
>>>No one has said that they didn't.
>>
>>However, they are not as superior to our modern enlightened views or
>>culture and he has said this in so many words.
>
>Are you saying that he is saying that two views of the same
>phenomenon are not inherently equal? If he is, then I agree with
>him. But I'm not sure what you are saying.
I'm saying that those who came into this country in 1620 made
judgements on who was civilized based on their culture and
perceptions. They were not correct in many cases. These Englishmen
jusdged the natives as not having a religion because they saw no signs
of religion they were familiar with. They took many inferences based
on what they saw as evidence that these natives were the devils
children. Now I gave examples in a reply to Schulman that he cut. I'll
give you another.
Killing women and children in war doesn't seem to have been a
practice of the New England Indians. In fact, it seems that they would
begin a war for the specific purpose of augmenting their female
population. Contact era Europeans, like John Smith, agreed that
Indians in warfare killed only men and seem to have refrained from
sexual molestation of female prisoners that they took back to their
villages to be assigned to families as wives and daughters.
During a Pequot attack on Fort Saybrook there was a lull in
the fighting allowing a parlay to ensue. Gardiner relates that the
Indians called out and asked, "Have you fought enough?" Gardiner said
he did not know yet. The Pequots then asked if the English meant to
kill women and children? Gardiner responded that they would see that
hereafter. After what appears to be stunned and lengthy pause, the
Indians finally responded with, "We are the Pequits, and have killed
Englishmen, and can kill them as mosquetos and we will go to
Conectecott and kill men, women, and children, and we will take away
the horses, cows and hogs."
What might be more reflective of Indian customs in declaring
war, it would appear that honor in warfare was expected if what a
seventeenth century Lanape Indian expressed to a Pennsylvanian is any
indication:
"[W]e are minded to live at Peace: If we intended at any time to make
War upon you, we will let you know of it, and the Reasons why we make
War with you; and if you make us satisfaction for the injury done us,
for which the War is intended, then we will not make War on you. And
if you intend at anytime to make War on us, we would have you let us
know of it, and the Reasons for which you make War on us, and if we do
not make satisfaction for the Injury done to you, then you may make
War on us, otherwise you ought not to do it."
Who would be civilized by today's standards?
>>>>> When a culture gets to the point where it can begin to objectify
>>>>> the concept of "natural law," it has thereby ipso facto reached
>>>>> a position of higher understanding (if not practice) of the natural
>>>>> structure of human justice.
>>>>
>>>>So what makes one society have a better view of this than another?
>>>
>>>How close they get to an objective sense of higher justice. How
>>
>>Who judges "higher justice?"
>
>Those who have judgement,
Who would that be?
> which is all persons in whom that capacity
>is not impaired.
Who is judging impairedness?
> We judge distances, time, meaning, beauty.
And we all see things differently.
> "Higher
>justice" is that from which positive customs and laws are drawn and
>the basis on which they are themselves judged.
At that instance and in that culture.
> A culture which has
>the greater capacity to judge those positive customs and laws against
>the *purpose* for which they exist, and is able to more fully recognize
>the purpose for the purpose,
This is very lofty and full of high ideals but people aren't that
good. If they were we might have had better leadership in this country
since Harry Truman.
> if you will, is by definition more able
>to objectify the essential structures of human existence and understand
>what is just and fair and in conformity with higher law.
For that society and that culture.
>>>able they are to get beyond static custom or the letter of the law
>>>with regard to questions that they face.
>>
>>Many societies do this. Even American native cultures.
>
>And they do this to find a more just and true foundation for their
>judgements, i.e. the basis for the static custom or the letter of the
>law.
At that instance and for that society. There is an ebb and flow to
law. Some things that were not found to be good or natural go out of
favor at some instance and in that particular society.
>>>>> When a culture *reverts* to *pure* custom (i.e. turns *back* to simple
>>>>> positive law), it has in fact gone backwards,
>>>>
>>>>Who's perspective are we using here? He says something is backwards?
>>>>Some old laws and customs worked better than some laws and customs we
>>>>have now. But this would be going backwards?
>>>
>>>What *I* am saying here is that once there is an objective sense of
>>>natural law, that a *reversion* to *pure* custom (simple *positive*
>>>static standards), is a step backwards. I think that this is what
>>>is happening in the West.
>>
>>I'm trying to discuss history and colonial civilizations and not
>>modern philosophy. I'm speaking to what is viewed as civilization and
>>what is not.
>
>Well, I'm a little confused by that declaration. But the difference
>between civilization and primitive or tribal societies is a fairly
>distinct one, in my book. A civilization is a "great society," normally
>with a higher religion, encompassing a number of city or nation
>states, often many languages, with written records, usually developed
However, should you read anthropology you will find that groups of
people have been found that have no written records but have a custom
of law that includes an amazing amount of justice. Had you read my
long response to Mr. Schulman you would have seen a list of books on
this topic that disagree with your criteria.
>commercial standards, and held together by these commonalities
>so as to be distinct from other great societies. There have
>been about 21 civilizations in the six thousand years of recorded
>history. By contrast there are several thousand tribal societies,
>from the Mohawk and Navaho to the Tutsi and Masai.
Calling them tribal doesn't mean they were civilized. That was an
excuse used to decemate them.
>>>>> and moved to a position
>>>>> where it turns its back on the sense of higher law and true justice.
>>>>
>>>>What is higher law and who judges whether justice is true or not?
>>>
>>>Higher law is the greater sense of justice, the greater respect for
>>>life, both one's own life and the lives of others,
>>
>>So? 17th-Century Indian cultures had a much higher sense of justice
>>and view of life than their European counterparts did.
>
>Is that your opinion? I think that it's possible, but not likely,
See above.
> that
>as a society any *given*17th-Century Indian culture "had a much
>higher sense of justice and view of life than their European
>counterparts did," and I say that based on what I know about
>the conceptual basis of Western society, not on the results of
>the conflict between Western society and individual tribal
>societies in North America.
Then you need to get a couple of the books I listed in the post to Mr.
Schulman. I know he isn't interested but you might be.
[snipped -This is out of scope concerning colonial societies. ]
>>>>> It seeks to find a spirit of the law no deeper than the intent of the
>>>>> letter of the law, losing grip on the transcendent truths of human
>>>>> justice, the self-evident truths.
>>>>
>>>>I was not a part of the orignal argument of natural law. My argument
>>>>was only dealing with Jefferson's meaning of self-evidence which he
>>>>took from Reid. I've come back in because Schulman is making judgements
>>>>on who is superior culturally and this smacks of Spencerian thought.
>>>>What I saw in his posts was the prime example of the ugly American
>>>>looking down his nose at people and cultures different from his.
>>>
>>>I didn't detect any of that in what he was saying. Not in the way you
>>>are framing it. If, however, he is saying that Western society has
>>>benefitted from an objectification of the concept of natural law, and
>>
>>All societies have. I disagree with his limitations.
>
>All societies have benefitted from an objectification of the concept
>of natural law?
Natural law according to many moder philosophers is rarely used
anymore except in international law. I do not believe there is such a
thing that makes natural law standard among all societies.
>>>>> It is the difference between Dred Scott and "all men are created
>>>>> equal, endowed by their Creator with certain *inalienable* rights."
>>>>>
>>>>> The latter is a pure statement of natural law.
>>>>
>>>>No, it is not. Jefferson never meant that all mean are created equal in
>>>>the sense you term it. He meant that all men are created equal to judge
>>>>what is self-evident. One mistake people make is that Jefferson was
>>>>claiming that all men are equal at creation civically and politically
>>>>and economically. He isn't saying that.
>>>
>>>"...endowed by their Creator with certain inalienable rights. That
>>>among these are life, liberty, and the pursuit of happiness."
>>
>>Those are the three things that are self-evident. But the details are
>>the problem.
>>
>>>I'm not sure what you are trying to say. But that statement is
>>>as close to a statement of pure natural law as there is. It places
>>
>>No. That goes to self-evident. He also replaced property with
>>happiness. I wonder if you know why?
>
>Go ahead and refresh my memory.
It's in the thread about Thomas Reid which I do not have on this
computer.
>>>these rights in human nature itself, an endowment of creation,
>>>realizable by men as their natural place in the world.
>>
>>Yes, but liberty is not the same for all in his time.
>
>Nor were they governed directly by natural law, but the appeals
>to those precepts of natural law continue into the present.
>
>How, do you suppose, that happened?
It hasn't. It has changed. If you insist on being modern it may become
natural that men not be given miranda rulings which the FBI had used
since the 1920s. Apparently they thought that was a natural right of
those being arrested. It was "natural" to insist that a known
pick-pocket not be found within a large crowd in 19th-Century New
York. The police could tell him to leave even though he hadn't done
anything. The same would be true if a 19th-Century policemen saw
someone "acting" guilty or if he knew the individual was a criminal.
They could simply arrest them with no reason. We seem to be going
backwards to that kind of thinking.
>>>If men have an underlying right to life,
>>
>>Sure they do. But what does that mean? The government can take life
>>away.
>
>It means that in formulating positive law, that, chiefly in cases
>of where one person takes the life of another, the government
>can justly deprive the taker of life of his life. You were referring
>to the death penalty?
I was referring to due process. I was referring to Beccaria whoo was
only for taking a life under certain conditions. We have lost those
lofty ideals.
>>>>> The former is a
>>>>> literal reading of the letter of the law. The entire force of the
>>>>human
>>>>> endeavor depends, for its guiding spirit, on natural law.
>>>>
>>>>And this natural law is viewed differently from culture to culture.
>>>>There is not single natural law cross culturally.
>>
>>>Of course there is. In terms of the higher sense of human identity,
>>>there is only one humankind, however diverse in its cultural
>>>manifestations. Humans, as a species, and despite the variety
>>>of cultural norms, share a remarkable thread of essential
>>>continuity in their sensibilities.
>>
>>Who rules what a higher sense is?
>Each person, each jury, each elder, each judge, each lawmaker,
>each judicial body, each legislature, each individual with judgement.
So it is flawed and the reach isn't always for the highest.
>Generally, a person whose higher sense is that he deserves anything
>he wants and takes it and answers every other urge with rape or
>murder, that person would be called a sociopath or psychopath.
Or Machivellian. :-)
>And, generally, a person whose higher sense is that he must base
>each action of his life on the golden rule of love and kindness,
This is so much garbage. Sorry. I treat people in life as I would have
them treat me.
> must
>give each individual the benefit of the doubt, and must bend over
>backwards never to take offense, but to understand and love
>even his enemy, that person would be called a saint or a buddah.
I don't love my enemies. Sorry. I reserve that emotion for those who
care about me.
>The rest of us fall somewhere in between.
We are all different.
Mike
Rick Gardiner
>
> >And on that score you stand at odds with the founders, who believed
> >that morals are part of the innate (i.e., natural) fabric of the human
> >constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
> >and again lately)
>
> So *I* may disagree with the founders. Big deal. Many people disagree
> with the philosophy of the 18th-Century today. I do, in fact disagree
> with the conception of innate morals that Jefferson thought there was
> in his time.
Right on. Fair enough. Thanks for your honesty. I happen to agree with
the philosophy of the declaration of Ind.
> >treaties are a matter of positive law.
>
> Agreements among nations that have nothing to do with natural law as
> was pointed out to you in a post by someone who has a doctorate in
> international political science. I'm positive he didn't charge you for
> the education either.
He is wrong, as was evidenced by the cite from Friedman and Grotius.
> >http://www.yale.edu/lawweb/avalon/imt/jack01.htm
>
> No mention of framers or foundes in there. If your going to post an
> URL it ought to say what you claim, Mr. Gardiner.
The philosophy of the founders is referenced there though, isn't it?
To wit,
"We stand on the principle of responsible government declared some
three centuries ago to King James by Lord Chief Justice Coke, who
proclaimed that even a King is still 'under God and the law.'"
"Those acts which offended the conscience of our people were criminal
by standards generally accepted in all civilized countries, and I
believe that we may proceed to punish those responsible in full accord
with both our own traditions of fairness and with standards of just
conduct which have been internationally accepted."
"The legal position which the United States will maintain [is] based
on the common sense of justice."
RG
Scott D. Erb
Rick Gardiner wrote:
>
> > Natural law is NOT considered a source for international law.
>
> DEAD WRONG!
No, Rick, I teach international law. The sources for international law are primarily custom, but also
treaties and agreements. I'll be posting my online notes for the course next fall if you wish to follow
it. You are the one who is "dead wrong" here.
> You definitely are not very familiar with Grotius.
Grotius ideas are irrelevant to the issue at hand. Grotius came up with the notion, which I quoted and you
snipped, that international law should be consensual between states, and that sovereignty is the primary
principle (a social construct). Show me where in international law "natural law" is a source. As I noted,
people can argue that natural law is a source for customs, or that natural law is a reason for agreements on
things like human rights, but international law itself is a social construct.
cheers, scott
Scott D. Erb
Rick Gardiner wrote:
> > >
> > >According to Curtis the main source for the international law that
> > >condemned the Nazis were treaties (i.e., positive law).
> >
> > Where in the above did I use the word "main?"
>
> You said "they violated German law, *period*, and that was what the
> prosecutions were based upon.
Face it, Mike, Rick's snipping of most of the issues concerning his attempt to question your anti-nazi beliefs
and other ad hominems is as close to an admission of guilt he can give. The guy just doesn't have it in him to
admit when he's wrong.
You've made yourself clear, and Rick's trying to distort. I don't think he's fooling anyone. Why he does
these things is beyond me, he certainly can't think he's making himself look good.
> > >You definitely are not very familiar with Grotius.
> > >
> > >Here's an elementary primer: http://www.britannica.com/bcom/eb/article/0/0,5716,115100+12+108549,00.html
> >
> > Dr. Erb is dead wrong? Based on an encyclopedia article you found on
> > the web? Dear me, that is weak.
>
> Actually, the best evidence is found in Grotius himself.
No, Rick, that article doesn't talk about the sources of international law, and you know it (and Grotius'
opinions on law aren't relevant to that issue -- his major contribution to the development of international law
was promoting the idea of sovereignty and the consensual nature of international law). You, in your usual
intellectually dishonest manner, tried to pretend that an encyclopedia article proved me wrong when it didn't.
You put the URL there hoping no one would actually go to it, and believe you found something that proved me
wrong.
The fact is, you don't know much about international law. That's OK, most people don't! There is no reason
for you to know about it when teaching high school history, just as I don't need to know about details of the
American revolution when teaching international relations. But I teach a course on International Law, and have
had to look into it with some depth (though I wouldn't call myself an expert by any means!) You certainly can
make an argument that natural law is the basis for many of the customs (but certainly not all) that create
international law, and many people believe natural law is the basis for the agreements they signed on human
rights and other treaties. But it is not considered a source of international law.
cheers, scott
Scott D. Erb
Rick Gardiner wrote:
> >
> > Rick, again, you tried to assert that somehow Mike was taking a position that the only reason the
> > holocaust was wrong was because it was against German law,
>
> What does "they violated German law, period," imply to you?
It certainly does not imply (even out of context as you keep restating it) that Mike thinks it would have
been morally OK if it hadn't been against German law.
That kind of attempt you use to smear people is why your reputation is so tarnished, Rick.
> > Grotius' theories were actually a bit more complex. In his famous text on international law William
> > Slomanson notes: "While there were other intermediate influences on the development of international
> > law, its modern rootes may be traced to the 17th century Dutch Philosopher Hugo Grotius. He is often
> > referred to as the 'father of international law.' Grotius's fundamental contribution to the theory of
> > international law was his insistence upon a voluntary law of nations based upon their consent. That
> > willingness to observe certain norms was expressly stated in treaties or implicitly drawn from state
> > customary practices in international matters."
Ah, you didn't snip this. I thought you did in another post, so I apologize for claiming you snipped it.
Remember, its OK to make mistakes in this forum and to admit it when it happens.
> Grotius scholar Wolfgang Friedman writes, "Since modern international
> society is still dominated by the legal and political supremacy of the
> national state, Grotius' classical treatise, De Jure Belli Ac Pacis
> (http://herakles.lib.kyushu-u.ac.jp/grotius/f001.htm) is still an
> essential foundation for international law... 'Natural Law is so
> immutable that it cannot be changed by God himself' [writes Grotius in
> his De Jure].
Woooo, you're on shakey ground there. First, being a foundation for international law does not mean that
everything Grotius says there is considered a part of current international law. It means that it was the
ground from which current law sprung. Second, I'm not convinced that there is no natural law, and in fact,
I think some human rights accords are based on beliefs of natural law which I share. However, they only
become international law when they have been established as custom or agreement. Natural law arguments
alone are not enough to violate the sovereignty of states, even in Grotius formulation (indeed, the
consensual nature of international law is one of his main contributions). Your claim there is weak -- you
find one statement where Grotius claims that natural law is immutable, but you don't find anything which
ties it to the sources of international law today. It isn't. Read current texts and look for the sources
of international law, and the precedent cases and decisions by the World Court.
> The natural law doctrine provided Grotius with the
> theoretical foundation for certain overriding principles of order in
> the relations between the states.
No, that isn't international law, or is it what happened. Grotius argued for sovereignty and consensual
agreement to law, but that wasn't what created international law. It really didn't emerge until after the
Treaty of Westphalia, and in agreements signed later on. Grotius work was considered, as was work by
others, but he wasn't the one who designed the system.
> Grotius was, of course, well aware
> that there was in his time no law-giving authority superior to the
> will of the states.
No, he didn't give that authority, he was creating theories. These theories were used to some extent when
real international law was created, but not everything Grotius theorized or considered important was used.
He did not create international law. He is considered by some the "father of international law" because of
how SOME of his ideas became very important, NOT because he actually designed the system. I think you need
to recheck the history of this, you're a bit off base.
> It was, therefore, necessary for him to find some
> principle that could bind the nations to a common standard of behavior."
>
> As for your claim that international law is not grounded in natural
> law, well, if that's so, then its not grounded in Grotius, because
> Grotius is quite clear on this matter.
I think international law is very clear -- natural law is not considered a source of international law. I
think you need to read texts about international law, rather than try to claim that every opinion Grotius
had somehow has found its way into international law today.
cheers, scott
Scott D. Erb
Jean Monnet is considered the "Father of Europe," as he had the ideas for the European Union after WWII. Yet
from the Schumann plan to the Treaties of Rome to the recent Maastricht agreement, the actual nuts and bolts of
what the EU is and how it operates came from agreements between states. Much of this is much different than
what Monnet envisioned. It is just as wrong to use Monnet's ideas to describe what the EU is today as it is to
use Grotius ideas to describe what international law is today. Monnet's ideas spurred creation of the EU (an
amazingly successful venture, I might add), just as some of Grotius ideas helped promote international law. But
the realities of each can't be tied directly to every view or position Monnet or Grotius might have held.
cheers, scott
buc...@exis.net
>:|Rick, I can't figure out why you do it. Its like you're trying to be mean
>:|to pick fights with those whose point of view you disagree with, rather
>:|than trying to communicate. WHY?
Seems like he has a compulsion and can't help himself.
Have you noted that, by and large, he doesn't really address actually
historical posts. But you can count on him to pittle fart with this type of
responses, the he said I said, no I didn't say that, you said that, etc
type posts/responses.
Ahhhh, well, it takes all kinds to make the world go around.
Mike Curtis
<Gard...@pitnet.net> wrote:
>Mike Curtis wrote:
>>
>> >And on that score you stand at odds with the founders, who believed
>> >that morals are part of the innate (i.e., natural) fabric of the human
>> >constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
>> >and again lately)
>>
>> So *I* may disagree with the founders. Big deal. Many people disagree
>> with the philosophy of the 18th-Century today. I do, in fact disagree
>> with the conception of innate morals that Jefferson thought there was
>> in his time.
>
>Right on. Fair enough. Thanks for your honesty. I happen to agree with
>the philosophy of the declaration of Ind.
Which now you recognize was Reid, Hutcheson, Schaftesbury, Locke and
many others?
>> >treaties are a matter of positive law.
>>
>> Agreements among nations that have nothing to do with natural law as
>> was pointed out to you in a post by someone who has a doctorate in
>> international political science. I'm positive he didn't charge you for
>> the education either.
>
>He is wrong, as was evidenced by the cite from Friedman and Grotius.
He went further and showed you to be wrong. In fact Jackson's larger
book on Nuremberg discusses at lot of people. He even mentions
Napoleon's minister who warned Bonaparte about killing civilians and
the effect it would have on the support for his army in foreign lands.
I think the book is called _The Anatomy of the Nuremberg Trials_ and
is recommended.
>> >http://www.yale.edu/lawweb/avalon/imt/jack01.htm
>>
>> No mention of framers or foundes in there. If your going to post an
>> URL it ought to say what you claim, Mr. Gardiner.
>
>The philosophy of the founders is referenced there though, isn't it?
No. It's a lofty speech but then he had to work with the French,
Russians and the British.
>To wit,
>
>"We stand on the principle of responsible government declared some
>three centuries ago to King James by Lord Chief Justice Coke, who
>proclaimed that even a King is still 'under God and the law.'"
>
>"Those acts which offended the conscience of our people were criminal
>by standards generally accepted in all civilized countries, and I
>believe that we may proceed to punish those responsible in full accord
>with both our own traditions of fairness and with standards of just
>conduct which have been internationally accepted."
>"The legal position which the United States will maintain [is] based
>on the common sense of justice."
I thought you liked Blackstone? :-) Coke wrote on the law and was out
of favor with James and no longer the Lion under the throne. However
this isn't all that Jackson wrote.
And no where does he say anything about the founders? The framers
based their law on many different people and views and we''ve been
over this ad nauseum.
Mike Curtis
<Gard...@pitnet.net> wrote:
>
>
>Jeff Sinclair wrote:
>>
>> Funny how you left that critical information out, especially when it
>> changes the entire meaning of the letter, and especially what Jefferson
>> himself is saying is that what is considered "natural" concerning
>> morality, differs from society to scoeity and is shaped by the local
>> environment in its specifics in each culture, even while there are
>> general structures, largely undifferentiated and undefined, upon which
>> these specifics can be built. In this instance, his assertions
>> concerning cross-cultural differences can certainly be backed up by
>> emipirical evidence, even while his descriptions of an innate sense of
>> "truth" cannot.
>
>Well, I'm sorry that you think Jefferson was erroneous on this point
>of his philosophy.
The point was your use of context. You were not honest. I do hope you
do not teach young students in this manner.
> I think that his descriptions of innate sense of
>truth can be backed up by the empirical evidence.
Present it.
[snip]
>> The fact was
>> that, concerning children who actually _were_ socialized in Nazi
>> Germany, they _did_ grow up believing that Jews and other "üntermenchen"
>> were inferior and that it was "natural" that they should be
>> exterminated. That this in fact happened is mute testimony to the fact
>> that what came to be considered "natural" in that culture was not
>> something that was innate but which was shaped.
>
>This relativistic defense of genocide is simply appalling. We have
>reached an impasse. I think that when a human being engages in torture
>and systematic extermination of fellow human beings, their natural
>conscience will condemn them regardless of their socialization. You
>don't. What more can be said?
Lots. A lot has been written. One individual was Irma Grese who was
raised in the Nazi psyche. She attended the schools and read the text
books. Math problems were anti-Semitic and was much of the reading
material. The culture was steeped in sicientific views of eugenics and
the influence of Jeiwsh blood on the purity of the Nordic race. When
this is all one reads and hears then this is what one will think is
correct. Irma Grese thought so. When asked by reportewrs why she did
what she did at Auschwitz and Bergen-Belsen she told them that
purifying the human race of those not worthy of life was better for
all. The commandant of Bergen-Belsen could not understand why the
British were so upset about his treatment of Jewish inmates. He
thought that all people of the world thought the way he did. What
condemned those people during the Belsen trial was the expectation
that their civilian prisoners should have been treated in a humane law
based on various military and international conventions. They also had
to prove murder and in many cases they did. The sociology had nothing
to do with the crime. When someone whips someone to death, as Grese
did, then that is murder. When she shoots three people in cold blood
that is murder. It was murder even under the rules of the
concentration camp. She violated that. She wasn't supposed to have a
whip but she had one and violated that rule.
There is so much you do not understand about the holocaust and the
trials that I can't possibly begin to explain here.
>You would have been a good defense lawyer for many Nazis.
I don't see how. This wasn't the argument the defense used. Trial
reading about some of these trials and learn a bit before your ad
hominems.
>RG
Jeff Sinclair
In article <3906781D...@pitnet.net>,
Gard...@pitnet.net wrote:
>
>
> Jeff Sinclair wrote:
> >
> > Funny how you left that critical information out, especially when it
> > changes the entire meaning of the letter, and especially what
Jefferson
> > himself is saying is that what is considered "natural" concerning
> > morality, differs from society to scoeity and is shaped by the local
> > environment in its specifics in each culture, even while there are
> > general structures, largely undifferentiated and undefined, upon
which
> > these specifics can be built. In this instance, his assertions
> > concerning cross-cultural differences can certainly be backed up by
> > emipirical evidence, even while his descriptions of an innate sense
of
> > "truth" cannot.
>
> Well, I'm sorry that you think Jefferson was erroneous on this point
> of his philosophy.
The only one who made an error in this exchange is you by snipping the
context and the content of Jefferson's quote, which showed that even
Jefferson recognized that what is "natural" differs from society to
society.
Since you dishonestly snipped it, I will restore it:
===========
> (Jefferson to Law
http://odur.let.rug.nl/~usa/P/tj3/writings/brf/jefl230.htm)
Thank you, BTW, for the URL reference, as it allows me to access the
total context of Jefferson's
letter, which, unsurprisingly, "qualifies" how you represent Jefferson,
to say the least. From the same
letter:
"Some have argued against the existence of a moral sense, by saying
that if nature had given us such
a sense, impelling us to virtuous actions, and warning us against those
which are vicious, then nature
would have designated, by particular ear-marks, the two sets of
actions which are, in themselves, the one virtuous and the other
vicious. Whereas, we find, in fact, that
the same actions are deemed virtuous in one contry and vicious in
another. The answer is that nature
has constituted _utility_ [emphasis Jefferson's] to man the standard
and the best of virtue. Men living in
different countries, under different circumstances, different habits
and regimens, may have different
utilities; the same act, therefore, may be useful and
virtuous in one country which is injurious and vicious in another
differently circumstanced. I certainly,
then, believe with you in the _general_ [emphasis mine] existence of a
moral instinct."
Funny how you left that critical information out, especially when it
changes the entire meaning of the
letter, and especially what Jefferson himself is saying is that what is
considered "natural" concerning
morality, differs from society to scoeity and is shaped by the local
environment in its specifics in each
culture, even while there are general structures, largely
undifferentiated and undefined, upon which
these specifics can be built. In this instance, his assertions
concerning cross-cultural differences can certainly be backed up by
emipirical evidence, even while his
descriptions of an innate sense of "truth" cannot.
Jefferson also rejected assertions that you have previously made
concerning the foundation of morality,
thus depriving you of an appeal to an "absolute", by noting the
relative moralities of some of those who
did not buy into that "absolute" foundation:
"Some have made the _love of God_ [emphasis Jefferson's] the foundation
of morality. This too is but a
branch of our moral duties, which are generally divided into duties to
God and duties to man. If we did a
good act merely from the love of God and a belief that it is pleasing
to Him, whence arises the morality
of the Atheist? It is idle to say, as some do, that no such being
exists. We have the same evidence of
the fact as of most of those we act on, to-wit: their own affirmations,
and their reasonings in support of
them. I have observed, generally, that while in protestant countries
the defections from the Platonic
Christianity of the priests is to Deism, in catholic countries they are
to Atheism. Diderot, D'Alembert,
D'Holbach, Condorcet, are known to have been among the most virtuous of
men. Their virtue, then,
must have had some other foundation than the love of God."
================
Deal with it.
> I think that his descriptions of innate sense of
> truth can be backed up by the empirical evidence.
Then present such empirical evidence that there is an "innate sense of
truth" or stop babbling. Well?
> As I said before,
> although you may find a Bundy, a Dahmer, or a Gayce here or there,
> these exceptions don't nullify the existence of a general moral
> conscience which is part and parcel of the constitution of the typical
> homo sapiens.
And how that general moral conscience is shaped differs from society to
society as I have noted and as Jefferson himself notes in the paragraphs
above. What is considered "truth" is very much shaped by experience.
> > The fact was
> > that, concerning children who actually _were_ socialized in Nazi
> > Germany, they _did_ grow up believing that Jews and other
"üntermenchen"
> > were inferior and that it was "natural" that they should be
> > exterminated. That this in fact happened is mute testimony to the
fact
> > that what came to be considered "natural" in that culture was not
> > something that was innate but which was shaped...
>
> This relativistic defense of genocide is simply appalling. We have
> reached an impasse. I think that when a human being engages in torture
> and systematic extermination of fellow human beings, their natural
> conscience will condemn them regardless of their socialization. You
> don't. What more can be said?
And now, the rest of the paragraph above as I wrote it which you
dishonestly snipped which says something quite different than what
you are trying to impose on it:
http://x41.deja.com/getdoc.xp?AN=615619988
"... There were thousands of children in Germany at the end of the war
quite unashamedly thought it was quite natural that Hitler was God and
that the Aryans were superior, because they had not been taught
anything different. Older people, who
had been not been socialized into the extremism of Naziism from
earliest childhood, and who had had
more of a connection with values which contradicted the Nazis, did feel
guilt, and even among the mass murderers at Nuremburg (with the
exceptions of some such as Hess, Streicher, and Ley who suffered
other forms of mental illness),
understood the enormity of their crimes which stood in direct
contradiction to significant parts of the German cultural tradition
which they themselves had been socialized in."
There is certainly no defense of genocide here on any grounds. It
merely seeks to partially explain how a people who had been among the
most civilized in Europe could move toward the depths of barbarity and
think it "natural" in contradiction to the strands of humanitarian
thought embedded in their own cultural tradition out of the Western
philosophical tradition. Your attempt to slander (again) is exposed as
the cheap parlor trick that it is.
> You would have been a good defense lawyer for many Nazis.
Nice try at yet more slander. Mike and I have been active in fighting
the Nazis on the internet and elsewhere and despise their thinking. You,
however, have shown some promise in defending them.
I would not even begin to compare to this gem of a defense:
http://x34.deja.com/[ST_rn=ps]/getdoc.xp?AN=563466973
JS:
> Big deal. They all note that Luther's anti-semitism was not racially
> motivated but religiously motivated. Nowhere do any of the above
three
> sources say that Luther was not anti-semitic at the end of his life;
> they state that his anti-semitism was religiously motivated.
RG:
what an idiot. Anti-SEMitism is by nature a racial hatred. Semite is a
racial distinction. You don't
seem to get it one bit. Luther was not against Semites, he was against
those who rejected the
Gospel. He was against Judaism as a theological position. If a Semite
converted to Christianity,
Luther would have no longer despised him. Thus, "anti-SEMitism" is
entirely the wrong word.
Now who could have defended Luther's anti-semitism and the resulting
persecution of the Jews on the basis of it being "religiously"
motivated? [Clue: the name of the person rhymes with "Brick Hardener"]
So, is your defense of the same anti-semitic thoughts that the Nazis
adopted from Luther based upon "absolute" values or would you say that
your thinking here in defending Luther is merely "relativistic"?
Too bad David Irving didn't see your post before his trial. If he had he
might have gotten a phone call on the tele with a job offer.
People who live in glass houses shouldn't throw stones, don't you think?
As Mike Curtis likes to end his posts with:
as algernon sidney wrote:
Liars ought to have good memories.
Discourses on Government. Chap. ii. Sect. xv.
LOL!
--
Quod si nihil cum potentiore juris humani relinqui
tur inopi, at ego ad Deos vindices humanea superbiae
confugiam - Livy, bk 9, ch. 1
Richard A. Schulman
>> > Natural law is NOT considered a source for international law.
Rick Gardiner:
>> DEAD WRONG!
Mr. Gardiner is correct. See the Encarta quotes which follow later in
this post.
Erb:
>No, Rick, I teach international law.
When argument from authority fails as badly as in this case, one can
only commiserate with the "authority"'s hapless students.
Erb:
> The sources for international law are primarily custom, but also
>treaties and agreements.
Custom is often held to derive from natural law, as you yourself
concede below.
Erb:
> I'll be posting my online notes for the course next fall if you wish to follow
>it. You are the one who is "dead wrong" here.
Save yourself the trouble. On the basis of evidence to date, it's
doubtful that the notes will be any more authoritative than your
posts.
Gardiner:
>> You definitely are not very familiar with Grotius.
Erb:
>Grotius ideas are irrelevant to the issue at hand. Grotius came up with the notion, which I quoted and you
>snipped, that international law should be consensual between states, and that sovereignty is the primary
>principle (a social construct). Show me where in international law "natural law" is a source. As I noted,
>people can argue that natural law is a source for customs, or that natural law is a reason for agreements on
>things like human rights, but international law itself is a social construct.
Your basic argument in this post and other recent posts by you is that
international law isn't valid except as ratified by states in treaties
or conventions. This is not true:
"If each nation were free to declare unilaterally that it is no longer
bound by international law, the result would be anarchy. A test was
provided in the conduct of Germany under Nazi rule. The Nürnberg
tribunals held that the German government regulations that ordered,
for example, the killing of prisoners of war in contravention of the
generally valid rules of warfare were null and void and that the
persons responsible for issuing and executing such orders were
criminally responsible for violations of international law."
("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
Microsoft Corporation. All rights reserved.)
The quote above also disproves Mike Curtis's claim that the Nürnberg
prosecutions were for violations of German law.
The same Encarta article underlines Grotius (and a second natural law
theorest, Vattel) as the source for modern international law.
"Building largely on the work of previous legal writers, especially
Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called
the father of modern international law, published his celebrated
treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in
1625. (Prior to that time he had published his pioneering tract on
freedom of the sea, Mare Liberum,1609.) Grotius based his system on
the law of nature and propounded the view that the already existing
customs governing the relation between nations had the force of law
and were binding unless contrary to natural justice. His influence on
the conduct of international affairs and the settlement of wars was
great. His ideas became the cornerstone of the international system as
established by the Peace Treaties of Westphalia (1648), which ended
the Thirty Years' War.
"Other scholars and statesmen further developed the basic rules of
international law, among them the Dutch jurist Cornelis van
Bynkershoek and the Swiss diplomat Emmerich de Vattel whose Le droit
des gens (1758; Law of Nations) exercised great influence on the
framers of the U.S. Constitution." (loc. cit.)
---
Richard Schulman
Remove antispamming XYZ for email reply
PGP id: 0xAFB852BF
Scott D. Erb
"Richard A. Schulman" wrote:
> Scott Erb:
> >> > Natural law is NOT considered a source for international law.
>
> Rick Gardiner:
> >> DEAD WRONG!
>
> Mr. Gardiner is correct. See the Encarta quotes which follow later in
> this post.
Mr. Gardiner is wrong. See below.
> Erb:
> >No, Rick, I teach international law.
>
> When argument from authority fails as badly as in this case, one can
> only commiserate with the "authority"'s hapless students.
More insults from Richard, along with snips to make it seem like I'm saying it differently than I am. Typical.
However, in this case I explained my position (most of which Richard snipped) and why Rick was wrong. Now I will
show why Richard's attempt to distort by using vague quotes from Microsoft's McEncyclopedia are not only
misplaced, but I think represent a dishonest attempt by Richard to obscure the truth.
> Erb:
> > The sources for international law are primarily custom, but also
> >treaties and agreements.
>
> Custom is often held to derive from natural law, as you yourself
> concede below.
Its not a concession, Richard. Its my explanation of what the reality of the situation is. Custom can be seen
as having nothing to do with natural law as well, which many scholars argue. Hence custom, not natural law, is
considered a source of international law.
>Save yourself the trouble. On the basis of evidence to date, it's
> doubtful that the notes will be any more authoritative than your
> posts.
(chuckle) Methinks thou doth protest too much.
> Your basic argument in this post and other recent posts by you is that
> international law isn't valid except as ratified by states in treaties
> or conventions.
No, Richard, here you are simply lying. I made clear in my first post that CUSTOM was the main source of
international law. Custom, followed by treaty, and international organizations (things such as the
International Woman's Conference in China a few years ago or the environmental conference in Kyoto are sources of
international law, though less important than real treaties and customs).
> This is not true:
>
> "If each nation were free to declare unilaterally that it is no longer
> bound by international law, the result would be anarchy. A test was
> provided in the conduct of Germany under Nazi rule. The Nürnberg
> tribunals held that the German government regulations that ordered,
> for example, the killing of prisoners of war in contravention of the
> generally valid rules of warfare were null and void and that the
> persons responsible for issuing and executing such orders were
> criminally responsible for violations of international law."
> ("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
> Microsoft Corporation. All rights reserved.)
McEncylopedia does a poor job there, though given your penchant for out of context quotes, I don't know what it
really says as a whole. Anyway, lets get into the nitty gritty and beyond vague and unclear statments:
Tell me, Richard, who enforces international law? Who prevents countries from unilaterally declaring themselves
not bound by it? Example: the US unilaterally declared that, due to sovereignty, it didn't have to follow the
ICJ ruling on the Nicaraguan case, thus putting domestic national interest above international law,
unilaterally. Britain always puts domestic law above international law (the US does if domestic law is more
recent). No, Richard, states can and do pick and choose when they are to follow international law. Five states
can veto ANY enforcement of international law against them, unilaterally.
If states have a dispute that goes to the World Court, each have to agree to be bound by its decision. Otherwise
the World Court doesn't hear it. The only body that can actually enforce international law rarely does -- the
United Nations Security Council. Absent the UN, there would be nothing to prevent all nations from unilaterally
declaring that they didn't have to follow international law. They may choose to follow it out of self-interest,
but that certainly isn't proof that somehow Rick was right about international law being based on natural law.
> The quote above also disproves Mike Curtis's claim that the Nürnberg
> prosecutions were for violations of German law.
One could argue it was victor's justice, or international custom or (as was argued at the time) German law.
Certainly your vague quote doesn't prove anything, nothing like you're claiming.
> The same Encarta article underlines Grotius (and a second natural law
> theorest, Vattel) as the source for modern international law.
They are early sources, not the only sources, as I think you know. I've explained Grotius importance in earlier
posts. Most of current international law comes from a wide variety of sources.
> "Building largely on the work of previous legal writers, especially
> Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called
> the father of modern international law, published his celebrated
> treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in
> 1625. (Prior to that time he had published his pioneering tract on
> freedom of the sea, Mare Liberum,1609.) Grotius based his system on
> the law of nature and propounded the view that the already existing
> customs governing the relation between nations had the force of law
> and were binding unless contrary to natural justice. His influence on
> the conduct of international affairs and the settlement of wars was
> great. His ideas became the cornerstone of the international system as
> established by the Peace Treaties of Westphalia (1648), which ended
> the Thirty Years' War.
>
> "Other scholars and statesmen further developed the basic rules of
> international law, among them the Dutch jurist Cornelis van
> Bynkershoek and the Swiss diplomat Emmerich de Vattel whose Le droit
> des gens (1758; Law of Nations) exercised great influence on the
> framers of the U.S. Constitution." (loc. cit.)
Again, Richard, this doesn't say at all that Rick was right -- in fact quite the opposite.
As usual, you are simply lying when you claim these quotes say anything about international law which contradicts
what I said, especially as they don't touch on how international law is practiced today.
At least your dishonesty is transparent and easy to disprove.
cheers, scott
Mike Curtis
<RichardAS...@att.net> wrote:
>"If each nation were free to declare unilaterally that it is no longer
>bound by international law, the result would be anarchy. A test was
>provided in the conduct of Germany under Nazi rule. The Nürnberg
>tribunals held that the German government regulations that ordered,
>for example, the killing of prisoners of war in contravention of the
>generally valid rules of warfare were null and void and that the
>persons responsible for issuing and executing such orders were
>criminally responsible for violations of international law."
>("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
>Microsoft Corporation. All rights reserved.)
>
>The quote above also disproves Mike Curtis's claim that the Nürnberg
>prosecutions were for violations of German law.
You do not seem to get it. First my claim is that violations of the
German law were not the only charges at Nuremberg or the sum total
reasoning behind the indictments. The trial of the major war criminals
is the most famous and it is not the only tiral held at Nuremberg. For
one thing the Nazis violated the law of the prior military rules that
the German military was subject to. First the court proved that the
Nazis were illigitimate by showing that they built up fictions to
impose military rule and then like gangsters murdered their
opposition. Since they were illigitimate the court then showed that a
whole variety of prior law was violated in order to keep them in power
and to destroy free access to the government process in the
dictatorship. I'm not all impressed with playing games with
encyclopedic resources that do not have the space for details.
>The same Encarta article underlines Grotius (and a second natural law
>theorest, Vattel) as the source for modern international law.
Who mentioned along with many others. Yet the details are where the
rubber hits the road and you and Gardiner tend to avoid those like the
plague.
snip - since you snip and ignore what those more expert in the field
are telling you, why should any of us read on?
Mike Curtis
Scott D. Erb
Mike Curtis wrote:
> On Wed, 26 Apr 2000 18:20:51 GMT, Richard A. Schulman
> <RichardAS...@att.net> wrote:
>
> >"If each nation were free to declare unilaterally that it is no longer
> >bound by international law, the result would be anarchy. A test was
> >provided in the conduct of Germany under Nazi rule. The Nürnberg
> >tribunals held that the German government regulations that ordered,
> >for example, the killing of prisoners of war in contravention of the
> >generally valid rules of warfare were null and void and that the
> >persons responsible for issuing and executing such orders were
> >criminally responsible for violations of international law."
> >("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
> >Microsoft Corporation. All rights reserved.)
> >
> >The quote above also disproves Mike Curtis's claim that the Nürnberg
> >prosecutions were for violations of German law.
>
> You do not seem to get it. First my claim is that violations of the
> German law were not the only charges at Nuremberg or the sum total
> reasoning behind the indictments.
Oh, I think they get it. That's why we're getting word games and vague
assertions that you're wrong, rather than rational discourse. They don't
seem to care what the truth is, they just want to defeat their opponents.
> The trial of the major war criminals
> is the most famous and it is not the only tiral held at Nuremberg. For
> one thing the Nazis violated the law of the prior military rules that
> the German military was subject to. First the court proved that the
> Nazis were illigitimate by showing that they built up fictions to
> impose military rule and then like gangsters murdered their
> opposition. Since they were illigitimate the court then showed that a
> whole variety of prior law was violated in order to keep them in power
> and to destroy free access to the government process in the
> dictatorship. I'm not all impressed with playing games with
> encyclopedic resources that do not have the space for details.
The Nuernberg trials were certainly controversial from an international law
perspective, and some do claim that a lot of the rationale was either
victor's justice or a sense that regardless of international law, the Nazis
simply had to be punished. The problem isn't one that can be overcome with
an appeal to emotion to posit natural law, but rests in the fact that we
don't have a developed legal system for international relations like we do
domestically. It is an anarchy of sorts, though one with a culture which
has developed over time, voluntaristically. Powerful states can and do
routinely avoid international law, or enforce it out of self-interest
(e.g., enforcing UN resolutions against Iraq but not Israel; fighting
against Yugoslavia for rather minor human rights abuses but not getting
involved in Rwanda). I'm not sure where Richard or Rick get their claims
about natural law here, or even what exactly they are arguing. I think
they're just trying to pick fights.
cheers, scott
Martin McPhillips
>
>I'm not sure where Richard or Rick get their claims
>about natural law here, or even what exactly they are arguing. I think
>they're just trying to pick fights.
The underlying theoretical development of international
law is rooted in natural law.
Vattel is a very good representative of the international law
theoreticians who based their thinking on natural law.
Try the Preliminaries and Book II--
Rick Gardiner
>
> On Tue, 25 Apr 2000 23:53:12 -0500, Rick Gardiner
> <Gard...@pitnet.net> wrote:
>
> >Mike Curtis wrote:
> >>
> >> >And on that score you stand at odds with the founders, who believed
> >> >that morals are part of the innate (i.e., natural) fabric of the human
> >> >constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
> >> >and again lately)
> >>
> >> So *I* may disagree with the founders. Big deal. Many people disagree
> >> with the philosophy of the 18th-Century today. I do, in fact disagree
> >> with the conception of innate morals that Jefferson thought there was
> >> in his time.
> >
> >Right on. Fair enough. Thanks for your honesty. I happen to agree with
> >the philosophy of the declaration of Ind.
>
> Which now you recognize was Reid, Hutcheson, Schaftesbury, Locke and
> many others?
From the get go I have been saying that the DOI was a restatement of
many common European theologians and philosophers. Each one of the men
you cite here were both theologians and philosophers. Hutcheson and
Reid had Presbyterian roots, Schaftesbury and Locke were products of
Puritanism, although Schaftesbury and Locke became latitudinarians,
god bless em.
Schaftesbury probably had much less direct influence on the philosophy
of the DOI than did Locke, and Locke's theories were little more than
a recapitulation of Milton, the Vindiciae, the Dutch Declaration, etc.
I truly do appreciate your newfound openness to accepting a profound
Scottish influence upon the founders. Most who want to play the
"French liberalism" card run from this like the plague, because they
know that the Scottish Enlightenment was fundamentally Calvinistic and
natural law based (cf. Witherspoon).
I don't think you quite understand who Reid was and what he was all
about. His "common sense philosophy" provided the explicit basis of
the "Old Princeton" theology which resulted in "Fundamentalism" in
1910. He and Kant were diametrically opposed, Reid being the
objectivist, and Kant the subjectivist. Most anti-fundamentalist
writers lay the blame for the evils of fundamentalism at the feet of
Reid (See e.g., George Marsden or Mark Noll; viz., SEARCH FOR A
CHRISTIAN AMERICA")
> >To wit,
> >
> >"We stand on the principle of responsible government declared some
> >three centuries ago to King James by Lord Chief Justice Coke, who
> >proclaimed that even a King is still 'under God and the law.'"
> >
> >"Those acts which offended the conscience of our people were criminal
> >by standards generally accepted in all civilized countries, and I
> >believe that we may proceed to punish those responsible in full accord
> >with both our own traditions of fairness and with standards of just
> >conduct which have been internationally accepted."
>
> >"The legal position which the United States will maintain [is] based
> >on the common sense of justice."
>
> I thought you liked Blackstone? :-)
Blackstone is great. He was an heir of Coke's.
> Coke wrote on the law and was out
> of favor with James and no longer the Lion under the throne. However
> this isn't all that Jackson wrote.
Coke's whiggish philosophy against James was the same philosophy used
by the founders against George. I would think that you would start to
learn these simple concepts by now.
RG
Scott D. Erb
Martin McPhillips wrote:
>The underlying theoretical development of international
> law is rooted in natural law.
>
> Vattel is a very good representative of the international law
> theoreticians who based their thinking on natural law.
Many philosophers, especially back a few centuries, used a belief in natural
law as their basis for thinking, but current international law does not use
"natural law" as a source. As I stated in the very first post on this, it
is possible to argue that natural law is the cause for customs to exist
across states, and custom is a source of international law. Its also
possible to argue that customs are pure social constructs, of course.
Current practice of international law does not rely on or require natural
law theory. Rick's claims on this were simply wrong. I personally do not
reject natural law, though as I've explained in a post a few weeks back, I
tend to look at it a bit differently than you or Rick (I can repost that if
you wish).
cheers, scott
Richard A. Schulman
>> Your basic argument in this post and other recent posts by you is that
>> international law isn't valid except as ratified by states in treaties
>> or conventions.
Scott Erg:
>No, Richard, here you are simply lying. I made clear in my first post that CUSTOM was the main source of
>international law. Custom, followed by treaty, and international organizations (things such as the
>International Woman's Conference in China a few years ago or the environmental conference in Kyoto are sources of
>international law, though less important than real treaties and customs).
Although you piously chastise your opponents for "insults," an
opponent's mere claim that you are in error suffices to automatically
draw you into denunciations of "liar"!
As for the point you make immediately above, arguments about
*validity* are not the same as arguments regarding historical
*source.* In your previous comments you have taken the view that,
whatever the derivation of principles of international law, those
principles aren't to be considered binding upon a country unless
ratified by some form of treaty or convention signed by that country.
This viewpoint is the one specifically attacked -- correctly, in my
opinion -- by the Entertain article on "International Law" that I
cited:
>> "If each nation were free to declare unilaterally that it is no longer
>> bound by international law, the result would be anarchy. A test was
>> provided in the conduct of Germany under Nazi rule. The Nürnberg
>> tribunals held that the German government regulations that ordered,
>> for example, the killing of prisoners of war in contravention of the
>> generally valid rules of warfare were null and void and that the
>> persons responsible for issuing and executing such orders were
>> criminally responsible for violations of international law."
>> ("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
>> Microsoft Corporation. All rights reserved.)
You denounce that statement as false, arguing with examples that
sovereign nations unilaterally can and do refuse to submit themselves
to international law in varying circumstances. I do not dispute the
examples but rather your interpretation of their significance.
Enforceability requires an executive power willing and able to enforce
the law. This is sometimes lacking even in a matters wholly internal
to a nation supposedly dedicated to rule by law. President Andrew
Jackson refused to enforce a Supreme Court ruling in regard to Indian
affairs. The present Administration has often been derelict in
enforcing principles of law where its own partisan interests are
importantly involved. Does this mean that the laws whose enforcement
at times have been selectively ignored are not valid? No.
So too for principles of international law. There must be an executive
power willing and able to prosecute. The inability in specific cases
to prosecute doesn't invalidate the laws or principles, however.
Happily, in the case of the Nursling prosecutions there was both the
will and means to prosecute a fair number of the crimes committed.
Schulman:
>> The same Encarta article underlines Grotius (and a second natural law
>> theorest, Vattel) as the source for modern international law.
Erg:
>They are early sources, not the only sources, as I think you know. I've explained Grotius importance in earlier
>posts. Most of current international law comes from a wide variety of sources.
Everything comes from a wide variety of sources, if one wants to talk
loosely. But some sources are more important than others. Hence, we
encounter authoritative statements such as the following in a wide
variety of sources:
>> "Building largely on the work of previous legal writers, especially
>> Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called
>> the father of modern international law, published his celebrated
>> treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in
>> 1625. (Prior to that time he had published his pioneering tract on
>> freedom of the sea, Mare Liberum,1609.) Grotius based his system on
>> the law of nature and propounded the view that the already existing
>> customs governing the relation between nations had the force of law
>> and were binding unless contrary to natural justice. His influence on
>> the conduct of international affairs and the settlement of wars was
>> great. His ideas became the cornerstone of the international system as
>> established by the Peace Treaties of Westphalia (1648), which ended
>> the Thirty Years' War.
>>
>> "Other scholars and statesmen further developed the basic rules of
>> international law, among them the Dutch jurist Cornelis van
>> Bynkershoek and the Swiss diplomat Emmerich de Vattel whose Le droit
>> des gens (1758; Law of Nations) exercised great influence on the
>> framers of the U.S. Constitution." (loc. cit.)
Erg:
>As usual, you are simply lying when you claim these quotes say anything about international law which contradicts
>what I said, especially as they don't touch on how international law is practiced today.
>
>At least your dishonesty is transparent and easy to disprove.
On the one hand, you denounce the Entertain article as untrue; on the
other hand, with characteristically inflammatory rhetoric, you say
that I am lying if I claim that these quotes refute anything you have
said. You can't have it both ways.
Richard A. Schulman
>>"If each nation were free to declare unilaterally that it is no longer
>>bound by international law, the result would be anarchy. A test was
>>provided in the conduct of Germany under Nazi rule. The Nürnberg
>>tribunals held that the German government regulations that ordered,
>>for example, the killing of prisoners of war in contravention of the
>>generally valid rules of warfare were null and void and that the
>>persons responsible for issuing and executing such orders were
>>criminally responsible for violations of international law."
>>("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
>>Microsoft Corporation. All rights reserved.)
>>
>>prosecutions were for violations of German law.
Mike Curtis:
>You do not seem to get it. First my claim is that violations of the
>German law were not the only charges at Nuremberg or the sum total
>reasoning behind the indictments.
I'm glad you have taken the opportunity to clarify (or correct) your
viewpoint, as the case may be.
> The trial of the major war criminals
>is the most famous and it is not the only tiral held at Nuremberg. For
>one thing the Nazis violated the law of the prior military rules that
>the German military was subject to. First the court proved that the
>Nazis were illigitimate by showing that they built up fictions to
>impose military rule and then like gangsters murdered their
>opposition. Since they were illigitimate the court then showed that a
>whole variety of prior law was violated in order to keep them in power
>and to destroy free access to the government process in the
>dictatorship. I'm not all impressed with playing games with
>encyclopedic resources that do not have the space for details.
Your obfuscating the key point. The prosecutions at Nuremberg were not
simply for violations of German law but emphatically and importantly
also for violations of international law.
>>The same Encarta article underlines Grotius (and a second natural law
>>theorest, Vattel) as the source for modern international law.
>
>Who mentioned along with many others. Yet the details are where the
>rubber hits the road and you and Gardiner tend to avoid those like the
>plague.
>
>snip - since you snip and ignore what those more expert in the field
>are telling you, why should any of us read on?
>
>Mike Curtis
---
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>>The underlying theoretical development of international
>> law is rooted in natural law.
>>
>> Vattel is a very good representative of the international law
>> theoreticians who based their thinking on natural law.
>
>Many philosophers, especially back a few centuries, used a belief in
natural
>law as their basis for thinking, but current international law does not use
>"natural law" as a source.
Of course it does. It's unavoidable.
I'll put back the link to Vattel's The Law of Nations
(and please do not snip it again, if you respond, so
that other readers will have the easy convenience of
referring to it)--
http://www.constitution.org/vattel/vattel.htm
--with the recommendation that you read through the
section titles in Book II and whatever text is convenient for you
to read. You will find virtually the entire theoretical
structure of international law and international relations.
>As I stated in the very first post on this, it
>is possible to argue that natural law is the cause for customs to exist
>across states, and custom is a source of international law. Its also
>possible to argue that customs are pure social constructs, of course.
And Vattel will tell you that custom must be observed, and that
treaties must be made. Natural law underlies the observance
of both convention and custom.
>Current practice of international law does not rely on or require natural
>law theory.
Of course it does. The general principles behind treaties/conventions
and customary law are found in the natural law theories of Vattel and
others.
>Rick's claims on this were simply wrong.
Not in the least. The principles of natural law are distinctly imbedded in
international law. I suggest that you read through Book II of Vattel's
The Law of Nations.
Scott D. Erb
"Richard A. Schulman" wrote:
> Richard Schulman:
> >> Your basic argument in this post and other recent posts by you is that
> >> international law isn't valid except as ratified by states in treaties
> >> or conventions.
>
> Scott Erg:
> >No, Richard, here you are simply lying. I made clear in my first post that CUSTOM was the main source of
> >international law. Custom, followed by treaty, and international organizations (things such as the
> >International Woman's Conference in China a few years ago or the environmental conference in Kyoto are sources of
> >international law, though less important than real treaties and customs).
>
> Although you piously chastise your opponents for "insults," an
> opponent's mere claim that you are in error suffices to automatically
> draw you into denunciations of "liar"!
I am very careful to point out what your lie is; the attack is against your argument, the fact you state things which
are obviously untrue. Calling a false statement a lie is not argumentum ad hominem, it is correcting dishonesty.
Now, if you were to respond by saying, "I am sorry, I was wrong about what I thought your argument was, it was not a
lie," I would say, "Fine, I accept that and withdraw my claim you lied." The thing is, I've caught you in so many
falsehoods that I've learned not to trust your claims and have come to the conclusion it is a volitional attempt to
distort and avoid attempts to determine the truth in an argument.
> As for the point you make immediately above, arguments about
> *validity* are not the same as arguments regarding historical
> *source.* In your previous comments you have taken the view that,
> whatever the derivation of principles of international law, those
> principles aren't to be considered binding upon a country unless
> ratified by some form of treaty or convention signed by that country.
> This viewpoint is the one specifically attacked -- correctly, in my
> opinion -- by the Entertain article on "International Law" that I
> cited:
No, my claim was very precise and not at all what you claim I said. The primary sources of international law are (in
order of importance): 1) custom; 2) treaty or agreement; 3) international conventions or organizations. I pointed out
that Grotius' importance for international law was his claim about how it should be consensual; it set the basis for
how sovereignty would be understood in the Westphalian system. What causes me to doubt your honesty is how you try to
restate another person's argument as something different than what it was, and then attack the restatement (while not
responding to the original). I have to assume you do that purposefully to hide the real nature of what the other
person has claimed.
> >> "If each nation were free to declare unilaterally that it is no longer
> >> bound by international law, the result would be anarchy. A test was
> >> provided in the conduct of Germany under Nazi rule. The Nürnberg
> >> tribunals held that the German government regulations that ordered,
> >> for example, the killing of prisoners of war in contravention of the
> >> generally valid rules of warfare were null and void and that the
> >> persons responsible for issuing and executing such orders were
> >> criminally responsible for violations of international law."
> >> ("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
> >> Microsoft Corporation. All rights reserved.)
>
> You denounce that statement as false, arguing with examples that
> sovereign nations unilaterally can and do refuse to submit themselves
> to international law in varying circumstances. I do not dispute the
> examples but rather your interpretation of their significance.
Correction: I said that I didn't know the context of the quote (you tend to snip quotes out of context, distorting
what they really claim), but as it stands it seems a poor job by Microsoft Encarta. Again, you wrongly restated my
reply (which you deleted) as "denouncing as false." That kind of tactic from you is intellectually dishonest. I
suggest you dispense with it, it ends up hurting you more than your opponents.
> Enforceability requires an executive power willing and able to enforce
> the law. This is sometimes lacking even in a matters wholly internal
> to a nation supposedly dedicated to rule by law.
That, of course, is irrelevant. What matters is that what I wrote is right.
-snip irrelevancies about Andrew Jackson-
> So too for principles of international law. There must be an executive
> power willing and able to prosecute.
There isn't, and thats part and parcel of international law; reflecting the importance of sovereignty. The lack of
such an executive is an essential principle of international law, though a principle recently ammended. After 1945
(long after Grotius, by the way), the United Nations created the one body that can actually legally violate
sovereignty -- the Security Council -- to enforce international law (it can also pass binding resolutions making
international law). However the five permanent members can veto any enforcement (or resolution making law), and in
fact nine of 15 members must support any enforcement, even absent a veto. No scholar seriously thinks the Security
Council can act like a domestic executive.
> The inability in specific cases
> to prosecute doesn't invalidate the laws or principles, however.
> Happily, in the case of the Nursling prosecutions there was both the
> will and means to prosecute a fair number of the crimes committed.
The point, Richard, is that the lack of an executive which can do this is the fundamental principle of international
law, going back to Grotius. You are simply wrong.
> >They are early sources, not the only sources, as I think you know. I've explained Grotius importance in earlier
> >posts. Most of current international law comes from a wide variety of sources.
>
> Everything comes from a wide variety of sources, if one wants to talk
> loosely. But some sources are more important than others. Hence, we
> encounter authoritative statements such as the following in a wide
> variety of sources:
But most of what is modern international law has little to do with Grotius. His principle of consenual law and
sovereignty helped define current principles, and he was one of the first to theorize about international law (though
the term "international" really comes from Jeremy Bentham), but most all of modern international law is post-Grotius.
The quote you provided in fact only gave examples of Grotius influence on the international law of the 17th century.
That was some time ago.
cheers, scott
Martin McPhillips
<snip>
>
>The point, Richard, is that the lack of an executive which can do this is
>the fundamental principle of international
>law, going back to Grotius. You are simply wrong.
After *citing* Grotius, you present this contradiction--
>But most of what is modern international law has little to do with
>Grotius. His principle of consenual law and
>sovereignty helped define current principles,
How could Grotius have "little to do with" yet "his principle
of consensual law and sovereignty helped define current
principles?" Clearly, in looking back to natural law
theorists such as Grotius and Vattel, you are looking
into the central issues and theories of international
law, per se. Do we say that Newton has "little to
do" with modern physics and calculus? We don't treat
John Locke like that, either.
There is no fundamental understanding of international
law, other than in the entirely limited sense of attending
to the details of existing conventions and customary law,
without reference to the underlying theoretical basis
found in the natural law philosophers whence international
law came.
<snip>
>but most
>all of modern international law is post-Grotius.
Well, most all of modern theoretical physics is
post-Einstein. Such is the nature of temporal progression
itself, that things that occur in the wake of a contribution
come post-contributor.
Scott D. Erb
Martin McPhillips wrote:
> And Vattel will tell you that custom must be observed, and that
> treaties must be made. Natural law underlies the observance
> of both convention and custom.
Again, I'm dealing with international law as it is currently defined. The
sources of international law do not include natural law, though people can argue
that things like customs or treaties are based on natural law (some argue that,
some do not).
You have not denied that point, and thus you really haven't countered anything
I've said.
> >Current practice of international law does not rely on or require natural
> >law theory.
>
> Of course it does. The general principles behind treaties/conventions
> and customary law are found in the natural law theories of Vattel and
> others.
Again, it is a very common argument that these are social constructs, and not
natural law, even if some philosophers believe they come from natural law. You
have not yet addressed that point.
I suggest you deal with the argument instead rest on a very dubious claim that
because one philosopher believed that some customs underlying international law
rest on natural law, it therefore means that it is proven that natural law
exists. Your argument is essentially illogical.
cheers, scott
Scott D. Erb
Martin McPhillips wrote:
> How could Grotius have "little to do with" yet "his principle
> of consensual law and sovereignty helped define current
> principles?"
He has little to do with most of what passes for international law, except for
the points I noted. You must be reading carelessly if you mistake a
qualification of a statement for a contradiction!
Again, most scholars of international law do not believe it to be grounded in
natural law, though some do (and many philosophers of the pre-20th century had
concepts of natural law). One does not have to believe in a concept of
natural law to explain the existence of international law. That is a
fundamental point you can't deny.
ciao, scott
Mike Curtis
<RichardAS...@att.net> wrote:
>Richard Schulman:
>>>"If each nation were free to declare unilaterally that it is no longer
>>>bound by international law, the result would be anarchy. A test was
>>>provided in the conduct of Germany under Nazi rule. The Nürnberg
>>>tribunals held that the German government regulations that ordered,
>>>for example, the killing of prisoners of war in contravention of the
>>>generally valid rules of warfare were null and void and that the
>>>persons responsible for issuing and executing such orders were
>>>criminally responsible for violations of international law."
>>>("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
>>>Microsoft Corporation. All rights reserved.)
>>>
>>>The quote above also disproves Mike Curtis's claim that the Nürnberg
>>>prosecutions were for violations of German law.
>
>Mike Curtis:
>>You do not seem to get it. First my claim is that violations of the
>>German law were not the only charges at Nuremberg or the sum total
>>reasoning behind the indictments.
>
>I'm glad you have taken the opportunity to clarify (or correct) your
>viewpoint, as the case may be.
You need not add the "correc" my claim for my claim hasn't changed
since I first asserted it.These threads are continuing conversation
and no one post of mine stands alone for I will continue my thoughts
from post to post. That's a feature of usenet you fail to understand
apparently.
>> The trial of the major war criminals
>>is the most famous and it is not the only tiral held at Nuremberg. For
>>one thing the Nazis violated the law of the prior military rules that
>>the German military was subject to. First the court proved that the
>>Nazis were illigitimate by showing that they built up fictions to
>>impose military rule and then like gangsters murdered their
>>opposition. Since they were illigitimate the court then showed that a
>>whole variety of prior law was violated in order to keep them in power
>>and to destroy free access to the government process in the
>>dictatorship. I'm not all impressed with playing games with
>>encyclopedic resources that do not have the space for details.
>
>Your obfuscating the key point. The prosecutions at Nuremberg were not
>simply for violations of German law but emphatically and importantly
>also for violations of international law.
It was both and many other things. There is no obfuscation but rather
a presentation, by me, of the overall picture one gets when actually
studying the cases.
Mike Curtis
Scott D. Erb
Mike Curtis wrote:
> >
> >I'm glad you have taken the opportunity to clarify (or correct) your
> >viewpoint, as the case may be.
>
> You need not add the "correc" my claim for my claim hasn't changed
> since I first asserted it.
Sigh. He doesn't want to admit that, he wants to create the appearance that
somehow he made you change your statement. I think the reason is that he's
less concerned with truth and fact than with trying to "win" debate points.
Ultimately, I think it hurts his credibility, I doubt too many people reading
this will have been fooled by him.
He's probably not worth spending much time on, I fear we grant him more
credibility than he deserves.
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> And Vattel will tell you that custom must be observed, and that
>> treaties must be made. Natural law underlies the observance
>> of both convention and custom.
>
>Again, I'm dealing with international law as it is currently defined.
Not really. You're attempting to separate current structures from
their theoretical roots. If you do that to a real building, i.e., take
away its sub-structure, you wind up with a pile of bricks. That's
a good analogy to treating international law without reference
to its theoretical base (and it's a remarkably practical theoretical
base, as any good structural foundation has to be).
(And I made a very specific request to you not to again snip
the url for Vattel's The Law of Nations, so that other readers
could refer to it at their convenience. Please leave this link
in any response)--
http://www.constitution.org/vattel/vattel.htm
I again recommend Book II, which is remarkably relevant to
current discussion of international law, given that it was written
250 years ago.
>The
>sources of international law do not include natural law,
Of course they do. The entire theoretical base for it is drawn
from natural law philosophers who dealt with international law
and international relations.
>though people can argue
>that things like customs or treaties are based on natural law (some argue
that,
>some do not).
That's a remarkably vague conclusion to your opening clause that
"the sources of international law do not include natural law."
>You have not denied that point, and thus you really haven't countered
anything
>I've said.
I have clearly denied the point that the "sources of international
law do not include natural law." The rest of it was too vague.
The only possible validity for that statement is if you focus only
on the details of positive law found in international conventions
or in the customary law without reference to the underlying
principles at work. That's impossible, as far as I'm concerned,
if one is interested in understanding how the current system
of international law developed. If one is uninterested in how
it developed, then one can amuse oneself with the details
of, for instance, the Berne Convention, but that wouldn't
be very scholarly, now would it?
>> >Current practice of international law does not rely on or require
natural
>> >law theory.
>>
>> Of course it does. The general principles behind treaties/conventions
>> and customary law are found in the natural law theories of Vattel and
>> others.
>
>Again, it is a very common argument that these are social constructs, and
not
>natural law, even if some philosophers believe they come from natural law.
>You have not yet addressed that point.
Yes, I did. Reread my sentence. I wrote that "the *general* *principles*
*behind* treaties/conventions and customary law are found in natural law
theories of Vattel and others." As ways of doing business, convention
and customary law are indeed "constructed," but they are constructed
in accordance with general principles, which are, at root, natural
law principles. All you have to do is read the reference material
I've provided the link to and you'll see exactly what I mean.
>I suggest you deal with the argument instead rest on a very dubious claim
that
>because one philosopher believed that some customs underlying international
>law rest on natural law, it therefore means that it is proven that natural
law
>exists. Your argument is essentially illogical.
That's nonsense, of course. For starters, it's not "one philosopher," it's
an entire tradition in natural law theory of international relations.
Do you need a good bibliography? I chose Vattel because his The
Law of Nations is on-line and readily accessible. He's one of many,
and his work is still very relevant to the discussion of international
law and relations, given that he enunciates very clearly much of
the theoretical grounding of it in natural law.
Mike Curtis
<cay...@nyct.net> wrote:
>Scott D. Erb wrote in message <390872C8...@maine.edu>...
>>
>>
>>Martin McPhillips wrote:
>>
>>> And Vattel will tell you that custom must be observed, and that
>>> treaties must be made. Natural law underlies the observance
>>> of both convention and custom.
>>
>>Again, I'm dealing with international law as it is currently defined.
>
>Not really. You're attempting to separate current structures from
>their theoretical roots. If you do that to a real building, i.e., take
>away its sub-structure, you wind up with a pile of bricks. That's
>a good analogy to treating international law without reference
>to its theoretical base (and it's a remarkably practical theoretical
>base, as any good structural foundation has to be).
He's telling you that its theoretical based has changed since the
16th, 17th, 18th and even the 19th centuries. Individual countries
have different views of what is natural as far as law is concerned.
That's why there are treaties and agreements.
>(And I made a very specific request to you not to again snip
>the url for Vattel's The Law of Nations, so that other readers
>could refer to it at their convenience. Please leave this link
>in any response)--
>
>http://www.constitution.org/vattel/vattel.htm
>
>I again recommend Book II, which is remarkably relevant to
>current discussion of international law, given that it was written
>250 years ago.
He isn't saying it isn't relevant. He is saying that times have
changed and viewpoints have changed. Philosophers have moved on.
>>The
>>sources of international law do not include natural law,
>
>Of course they do. The entire theoretical base for it is drawn
>from natural law philosophers who dealt with international law
>and international relations.
Prove it.
>>though people can argue
>>that things like customs or treaties are based on natural law (some argue
>that,
>>some do not).
>
>That's a remarkably vague conclusion to your opening clause that
>"the sources of international law do not include natural law."
He's syaing you are free to believe what you want to believe but the
rubber hits the road when you get away from generalized assertions and
get into detail. Present some.
>>You have not denied that point, and thus you really haven't countered
>anything
>>I've said.
>
>I have clearly denied the point that the "sources of international
>law do not include natural law." The rest of it was too vague.
So you say.
>The only possible validity for that statement is if you focus only
>on the details of positive law found in international conventions
>or in the customary law without reference to the underlying
>principles at work.
Provide an example.
> That's impossible, as far as I'm concerned,
>if one is interested in understanding how the current system
>of international law developed.
And the modern understandings have nothing to do with how its history
played out. You want to go back to the real ideals of the 17th
century? How about the 30 years war?
[snip] I'll wait for concrete examples.
Mike Curtis
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> How could Grotius have "little to do with" yet "his principle
>> of consensual law and sovereignty helped define current
>> principles?"
>
>He has little to do with most of what passes for international law, except
for
>the points I noted. You must be reading carelessly if you mistake a
>qualification of a statement for a contradiction!
Well, "little to do" isn't simply qualified by "his principles helped
define." If his principles are at the root of key concepts, he
by defintion had "a lot to do" with the subject at hand.
>Again, most scholars of international law
Like who? Do you have a specific statement from one of them
on this matter? Just something representative of what you think
the consensus of "most scholars" is. Because, when dealing with
specific cases in international law, specific conventions, for instance,
a scholar is not necessarily going to refer to natural law theorists.
Are you mistaking that for a scholarly rejection of Grotius, Vattel,
Pufendorf et al.? You see, you've made a specific claim here that
international law is not based in natural law, but the philosophical
tradition out of which international law has developed and on which
it relies for key principles says otherwise. I'd like to see something
other than your standard "most scholars" line to support that
position. Take as much time as you like.
>One does not have to believe in a concept of
>natural law to explain the existence of international law. That is a
>fundamental point you can't deny.
Well, this isn't a religious endeavor, so belief isn't the question.
Natural law theoreticians laid the foundation for international law,
and that is a fact. And if you spend some time with Vattel, as I've
been recommending, you'll see just how much of a fact it is--
http://www.constitution.org/vattel/vattel.htm
Scott D. Erb
Martin McPhillips wrote:
> Not really. You're attempting to separate current structures from
> their theoretical roots.
The theoretical roots are subject to debate. Customs emerge from common
practices, not from theories. Some customs recognized by international law have
no basis in any claim of natural law; other general principles might. But one
can approach the issue either with a natural law perspective, or with a view
that these are social or political constructs (a more common view in law schools
these days, natural law theory is sort of on the outs). The same goes for
treaties and agreements; one can assert that the principles are based on some
kind of natural law, or one can assert they are social and political
constructs. The former is a less common view these days.
I'm personally not anti-natural law, though I explained my views in a post in
response to you a few weeks ago. I want to avoid the emotion-based notions of
natural law Rick G. appeals to when he talks about sex with dead skunks and
things like that.
(rest deleted as irrelevant to the issues at hand, though readers are urged to
look at the previous post for context if they wish)
Scott D. Erb
Martin McPhillips wrote:
>You see, you've made a specific claim here that
> international law is not based in natural law,
No, that is not my claim.
My claim was that natural law is not considered a source for international law,
but rather customs, treaties, agreements and international organizations or
conferences are. I noted that one could argue that especially customs (but
also the others) have their basis in some concept of natural law, just as one
could argue they are social and political constructs. I also noted that I
personally am not ready to through out notions of natural law, but in a post a
while back which you didn't respond to I explained why I thought your claims
about natural law had some logical problems. Should I repost that?
(rest deleted -- unless you deal specifically with the claims above, you're
arguing against points I have not made)
cheers, scott
Martin McPhillips
>On Thu, 27 Apr 2000 14:16:19 -0400, "Martin McPhillips"
><cay...@nyct.net> wrote:
>
>>Scott D. Erb wrote in message <390872C8...@maine.edu>...
>>>
>>>
>>>Martin McPhillips wrote:
>>>
>>>> And Vattel will tell you that custom must be observed, and that
>>>> treaties must be made. Natural law underlies the observance
>>>> of both convention and custom.
>>>
>>>Again, I'm dealing with international law as it is currently defined.
>>
>>away its sub-structure, you wind up with a pile of bricks. That's
>>a good analogy to treating international law without reference
>>to its theoretical base (and it's a remarkably practical theoretical
>>base, as any good structural foundation has to be).
>
>He's telling you that its theoretical based has changed since the
>16th, 17th, 18th and even the 19th centuries. Individual countries
>have different views of what is natural as far as law is concerned.
>That's why there are treaties and agreements.
I suggest you read Vattel on these questions. The natural law
he uses in The Law of Nations specifically takes into account
individual differences in countries, the whys and wherefores
of treaties, and the importance of customs and their observance.
His theoretical structure is, in fact, precisely amenable to your
view as implied in the above paragraph.
>>(And I made a very specific request to you not to again snip
>>the url for Vattel's The Law of Nations, so that other readers
>>could refer to it at their convenience. Please leave this link
>>in any response)--
>>
>>http://www.constitution.org/vattel/vattel.htm
>>
>>I again recommend Book II, which is remarkably relevant to
>>current discussion of international law, given that it was written
>>250 years ago.
>
>He isn't saying it isn't relevant. He is saying that times have
>changed and viewpoints have changed. Philosophers have moved on.
You will find out, by reading Vattel, that some of them haven't
even caught up with him yet, and so therefore have hardly
"moved on." There's a big difference between lawyers and
the questions they must deal with in specific applications of
international conventions or customary law, diplomats who
represent the interests of their countries, prolix contemporary
scholars dealing with current issues in a theoretical vein,
and the theoretical wellsprings of the entire field itself.
No, that last one, the theoretical structure itself, has not in any sense
been "moved on" from. The basic issues remain remarkably
the same, and *familiar,* and in the case of Vattel, were dealt
with in terms that are replicated into the present discussion
of world affairs and the law of nations.
>>>The
>>>sources of international law do not include natural law,
>>
>>Of course they do. The entire theoretical base for it is drawn
>>from natural law philosophers who dealt with international law
>>and international relations.
>
>Prove it.
Help yourself--
http://www.constitution.org/vattel/vattel.htm
>>>though people can argue
>>>that things like customs or treaties are based on natural law (some argue
>>that,
>>>some do not).
>>
>>That's a remarkably vague conclusion to your opening clause that
>>"the sources of international law do not include natural law."
>
>He's syaing you are free to believe what you want to believe but the
>rubber hits the road when you get away from generalized assertions and
>get into detail. Present some.
You have the url for the The Law of Nations. It's divided into Books and
sections, very clearly presented, and deals with all the fundamental
issues of the relations between sovereign states (that's in Book II, Book
I deals with the nature of the sovereign state itself) which remain familiar
to us in the present.
>>>You have not denied that point, and thus you really haven't countered
>>anything
>>>I've said.
>>
>>I have clearly denied the point that the "sources of international
>>law do not include natural law." The rest of it was too vague.
>
>So you say.
Indeed I do.
>>The only possible validity for that statement is if you focus only
>>on the details of positive law found in international conventions
>>or in the customary law without reference to the underlying
>>principles at work.
>
>Provide an example.
Take any international law case in which the parties are arguing
over who is allowed to do what under the terms of a particular
treaty. It's not all that likely that you'll find references to classical
treatises. That's not the same thing as looking into the theoretical
basis of international law itself.
>> That's impossible, as far as I'm concerned,
>>if one is interested in understanding how the current system
>>of international law developed.
>
>And the modern understandings have nothing to do with how its history
>played out. You want to go back to the real ideals of the 17th
>century? How about the 30 years war?
When you read Vattel, you'll find out just how incredibly relevant
he is to the modern discussion.
>[snip] I'll wait for concrete examples.
Of what? How the theoretical basis of international law as
found in natural law philosophers first dealing with the subject
is relevant to current issues? You have the link, and I'm sure
you'll be delighted at the internal consistency of Vattel, not
to mention how he addresses questions important to you
in ways that I think you will appreciate.
Scott D. Erb
Martin McPhillips wrote:
> I suggest you read Vattel on these questions. The natural law
> he uses in The Law of Nations specifically takes into account
> individual differences in countries, the whys and wherefores
> of treaties, and the importance of customs and their observance.
I suggest you read Slomanson's text on international law. One can always pick
and choose what philosophers and theorists one agrees with or finds impressive,
but that doesn't mean that one can posit that particular theorist as somehow the
definitive word. Vattel has his position, as do others. All of that is
interesting background, as various philosophers have various positions, but it
really doesn't say much about the real nature of international law today.
The bottom line is that even if some of the philosophers whose ideas helped
create international law today believed in natural law, a belief in natural law
isn't necessary for understanding international law today. Most legal scholars
are legal positivists, but that doesn't mean they deny that earlier scholars had
a belief in natural law. Belief in natural law is just less common now than it
used to be.
cheers, scott
Scott D. Erb
devoid of any relevant content.
Perhaps Martin could post precisely what part of it is important -- this appears
again like the tactic of posting a URL and asserting it says more than it does in
order to hope to fool some readers. I see nothing that at all denies any claim I've
made.
cheers, scott
Martin McPhillips
>
>Martin McPhillips wrote:
>
>>You see, you've made a specific claim here that
>> international law is not based in natural law,
>
>No, that is not my claim.
O.K., let's see how you clarify that claim--
>My claim was that natural law is not considered a source for international
law,
>but rather customs, treaties, agreements and international organizations or
>conferences are. I noted that one could argue that especially customs (but
>also the others) have their basis in some concept of natural law, just as
one
>could argue they are social and political constructs.
So, you *didn't* say that international law is *not* *based* in natural law.
You said, rather, that natural law is *not* *considered* a *source* for
international law, but that customs, etc., are.
Well, I'll go you one better on that: The respect for local custom, the
development of customary law, the basis upon which all *workable*
treaties and agreements are negotiated, and the principles upon
which international organizations and conferences *successfully*
set standards and otherwise do their work, *all* have their source
in the principles of natural law as laid out by theoreticians like
Vattel.
Here's the url again--
http://www.constitution.org/vattel/vattel.htm
And I will specifically ask you for a *third* time not to delete
this url, if you respond, so that other readers will have a chance
to refer to it. I believe that it answers nearly all of the questions
anyone might have about the purpose of this discussion.
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> Not really. You're attempting to separate current structures from
>> their theoretical roots.
>
Not really. There are borrowings from Roman law, apparently,
but you'll find very little in Vattel that's not directly familiar
to current issues of international law and relations. I mean,
why would something with such *direct* linkage to the
ongoing issues be debateable? One could say, "well,
this has changed, or that has," but the larger framework
certainly hasn't. In fact, in looking at Vattel's work, I see someone
who could step right into the middle of a contemporary
dispute and handle it without the blink of an eye.
> Customs emerge from common
>practices, not from theories.
That's not the point. The point is how are differing customs handled
with respect to inter-nation relations. (There are specific national
customs and then there is international customary law. There is
nothing in either of those two distinct matters, whichever you are
referring to, that, per se, contradict natural law as it governs
relations between states).
>Some customs recognized by international law have
>no basis in any claim of natural law;
There's no specific need for them to have or to prove that they
have such a claim. Customs are customs. (You know, I think that
you are confusing *customs* per se, with international customary
law. The latter is the significant player in international law. The former
is an incidental question for mutual respect.)
I'll leave you off there. Why don't you get those two things
straightened out so everyone will be sure what you are referring to.
Are you referring to national customs, per se, or international
customary law?
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> I suggest you read Vattel on these questions. The natural law
>> he uses in The Law of Nations specifically takes into account
>> individual differences in countries, the whys and wherefores
>> of treaties, and the importance of customs and their observance.
>
I'm sure I would enjoy it.
> One can always pick
>and choose what philosophers and theorists one agrees with or finds
>impressive,
That's not what is happening here. This is a specific discussion as
to whether the natural law theorists, like Vattel, provide the foundation,
yes, the *source*, for what is international law as it is known today.
Here we have a text on-line to which anyone following along can
refer. I think that anyone who gives Vattel's The Law of Nations
a fair glance will find that 250 years have hardly dimmed the
relevance of this basic work.
I'll post the url again--
http://www.constitution.org/vattel/vattel.htm
>but that doesn't mean that one can posit that particular theorist as
somehow >the
>definitive word. Vattel has his position, as do others.
"The definitive word" hasn't been "posited." All that I have suggested
is that you will find, if you bother to look, all or almost all of the
modern issues of international law outlined in principle.
>The bottom line is that even if some of the philosophers whose ideas helped
>create international law today believed in natural law, a belief in natural
law
>isn't necessary for understanding international law today.
That's not the bottom line. That's a misrepresentation of the discussion.
The question is where did our current understanding of international
law come from? And a perusal of the early natural law theorists on
the subject will show that the fundamental principles and concepts of
international law are found in their work. There's no question of
"belief" involved.
>Most legal scholars
>are legal positivists, but that doesn't mean they deny that earlier
scholars had
>a belief in natural law. Belief in natural law is just less common now
than it
>used to be.
It has nothing to do with "belief," and it certainly has nothing to do with
"most legal scholars [being] legal positivists," unless you are claiming
that the beliefs of the legal positivists prevents them from considering
the clear principles for international law found in the work of Vattel
and others.
Mike Curtis
<cay...@nyct.net> wrote:
>Mike Curtis wrote in message <3908851b....@news.sig.net>...
>>On Thu, 27 Apr 2000 14:16:19 -0400, "Martin McPhillips"
>><cay...@nyct.net> wrote:
>>
>>>Scott D. Erb wrote in message <390872C8...@maine.edu>...
>>>>
>>>>
>>>>Martin McPhillips wrote:
>>>>
>>>>> And Vattel will tell you that custom must be observed, and that
>>>>> treaties must be made. Natural law underlies the observance
>>>>> of both convention and custom.
>>>>
>>>>Again, I'm dealing with international law as it is currently defined.
>>>
>>>Not really. You're attempting to separate current structures from
>>>their theoretical roots. If you do that to a real building, i.e., take
>>>away its sub-structure, you wind up with a pile of bricks. That's
>>>a good analogy to treating international law without reference
>>>to its theoretical base (and it's a remarkably practical theoretical
>>>base, as any good structural foundation has to be).
>>
>>He's telling you that its theoretical based has changed since the
>>16th, 17th, 18th and even the 19th centuries. Individual countries
>>have different views of what is natural as far as law is concerned.
>>That's why there are treaties and agreements.
>
>I suggest you read Vattel on these questions.
He's pretty vague. Why just him. what's wrong with the others? Why are
you singling him out?
> The natural law
>he uses in The Law of Nations specifically takes into account
What law of nations?
>individual differences in countries, the whys and wherefores
>of treaties, and the importance of customs and their observance.
Pretty vague.
>His theoretical structure is, in fact, precisely amenable to your
>view as implied in the above paragraph.
Except I'm not being vague. I gave examples that no one is addressing.
>>>(And I made a very specific request to you not to again snip
>>>the url for Vattel's The Law of Nations, so that other readers
>>>could refer to it at their convenience. Please leave this link
>>>in any response)--
>>>
>>>http://www.constitution.org/vattel/vattel.htm
>>>
>>>I again recommend Book II, which is remarkably relevant to
>>>current discussion of international law, given that it was written
>>>250 years ago.
>>
>>He isn't saying it isn't relevant. He is saying that times have
>>changed and viewpoints have changed. Philosophers have moved on.
>
>You will find out, by reading Vattel, that some of them haven't
Vattel is hardly modern.
so [snip]
>>>>The
>>>>sources of international law do not include natural law,
>>>
>>>Of course they do. The entire theoretical base for it is drawn
>>>from natural law philosophers who dealt with international law
>>>and international relations.
>>
>>Prove it.
>
>Help yourself--
>
>http://www.constitution.org/vattel/vattel.htm
This isn't proof. I don't know who they are. You keep quoting the same
page ad nauseum without ever proving your point.
>>>>though people can argue
>>>>that things like customs or treaties are based on natural law (some argue
>>>that,
>>>>some do not).
>>>
>>>That's a remarkably vague conclusion to your opening clause that
>>>"the sources of international law do not include natural law."
>>
>>He's syaing you are free to believe what you want to believe but the
>>rubber hits the road when you get away from generalized assertions and
>>get into detail. Present some.
>
>You have the url for the The Law of Nations. It's divided into Books and
>sections, very clearly presented, and deals with all the fundamental
>issues of the relations between sovereign states (that's in Book II, Book
>I deals with the nature of the sovereign state itself) which remain familiar
>to us in the present.
No. You make a case.
>>>>You have not denied that point, and thus you really haven't countered
>>>anything
>>>>I've said.
>>>
>>>I have clearly denied the point that the "sources of international
>>>law do not include natural law." The rest of it was too vague.
>>
>>So you say.
>
>Indeed I do.
Whoopdeedoo.
>>>The only possible validity for that statement is if you focus only
>>>on the details of positive law found in international conventions
>>>or in the customary law without reference to the underlying
>>>principles at work.
>>
>>Provide an example.
>
>Take any international law case in which the parties are arguing
No. that's general. Provide you own example. Be specific.
[snip]
Mike Curtis
Martin McPhillips
>I would also note that the Vattel quote that Martin posts a URL too seems
>empty and
>devoid of any relevant content.
I have no idea what you are referring to here, Scott. I didn't post
a url to a "Vattel quote." I posted a url to an on-line version of his
The Law of Nations, with a specific recommendation that you
could go directly to Book II, which deals with inter-national
issues, where you could puruse, at your leisure, the section
headings, many if not most of which cover principles of
relations between nations that undergird our contemporary
understanding of international law and relations.
>Perhaps Martin could post precisely what part of it is important -- this
appears
>again like the tactic of posting a URL and asserting it says more than it
does in
>order to hope to fool some readers. I see nothing that at all denies any
claim >I've
>made.
It's not a "tactic" designed to "fool" either you, or "some readers."
It's an accessible on-line version of a standard classical treatise on
international law and relations. And it demonstrates quite consistently
where the principles of international law are drawn from.
The work as a whole is remarkably internally consistent, as I have
found it so far, and I recommend that interested readers puruse it
at their leisure and comment thereupon, also at their leisure.
The url, again, which is to an on-line version of Vattel's
The Law of Nations--
http://www.constitution.org/vattel/vattel.htm
Mike Curtis
<cay...@nyct.net> wrote:
>Scott D. Erb wrote in message <39088819...@maine.edu>...
>>
>>
>>Martin McPhillips wrote:
>>
>>> Not really. You're attempting to separate current structures from
>>> their theoretical roots.
>>
>>The theoretical roots are subject to debate.
>
>Not really. There are borrowings from Roman law, apparently,
Yes, but Roman law is not American law. In Roman law people can simply
be arrested while waiting for trial without charges. This is true
today in Europe. However the customs are different here in this
country.
[snipped general assertions]
>> Customs emerge from common
>>practices, not from theories.
>
>That's not the point. The point is how are differing customs handled
>with respect to inter-nation relations. (There are specific national
See the single problem presented above. Another interesting problem
was the taking of Adolf Eichmann and international conflicts that
resulted. So customs were not the same in all aspects of this case
forcing the Israelis to apologize. They didn't have to send Eichmann
back.
Mike Curtis
Martin McPhillips
>On Thu, 27 Apr 2000 15:00:00 -0400, "Martin McPhillips"
><cay...@nyct.net> wrote:
>
>>Mike Curtis wrote in message <3908851b....@news.sig.net>...
>>>On Thu, 27 Apr 2000 14:16:19 -0400, "Martin McPhillips"
>>><cay...@nyct.net> wrote:
>>>
>>>>Scott D. Erb wrote in message <390872C8...@maine.edu>...
>>>>>
>>>>>
>>>>>Martin McPhillips wrote:
>>>>>
>>>>>> And Vattel will tell you that custom must be observed, and that
>>>>>> treaties must be made. Natural law underlies the observance
>>>>>> of both convention and custom.
>>>>>
>>>>>Again, I'm dealing with international law as it is currently defined.
>>>>
>>>>Not really. You're attempting to separate current structures from
>>>>their theoretical roots. If you do that to a real building, i.e., take
>>>>away its sub-structure, you wind up with a pile of bricks. That's
>>>>a good analogy to treating international law without reference
>>>>to its theoretical base (and it's a remarkably practical theoretical
>>>>base, as any good structural foundation has to be).
>>>
>>>He's telling you that its theoretical based has changed since the
>>>16th, 17th, 18th and even the 19th centuries. Individual countries
>>>have different views of what is natural as far as law is concerned.
>>>That's why there are treaties and agreements.
>>
>>I suggest you read Vattel on these questions.
>
>you singling him out?
I'm "singling him out" because his work is available on-line, and
therefore anyone interested can refer to it. I haven't found on-line
versions of the others yet.
And "he's pretty vague?" This is a work of political philosophy that
deals with the nature of states and their relations to one another.
It's no more "vague" than most works of its kind, then or now.
>> The natural law
>>he uses in The Law of Nations specifically takes into account
>
>What law of nations?
"The Law of Nations" is the title of his treatise.
>>individual differences in countries, the whys and wherefores
>>of treaties, and the importance of customs and their observance.
>
>Pretty vague.
You can always go and have a look for yourself.
>>His theoretical structure is, in fact, precisely amenable to your
>>view as implied in the above paragraph.
>
>Except I'm not being vague. I gave examples that no one is addressing.
O.K.
>>>>(And I made a very specific request to you not to again snip
>>>>the url for Vattel's The Law of Nations, so that other readers
>>>>could refer to it at their convenience. Please leave this link
>>>>in any response)--
>>>>
>>>>http://www.constitution.org/vattel/vattel.htm
>>>>
>>>>I again recommend Book II, which is remarkably relevant to
>>>>current discussion of international law, given that it was written
>>>>250 years ago.
>>>
>>>He isn't saying it isn't relevant. He is saying that times have
>>>changed and viewpoints have changed. Philosophers have moved on.
>>
>>You will find out, by reading Vattel, that some of them haven't
>
>Vattel is hardly modern.
All right.
>so [snip]
>
>>>>>The
>>>>>sources of international law do not include natural law,
>>>>
>>>>Of course they do. The entire theoretical base for it is drawn
>>>>from natural law philosophers who dealt with international law
>>>>and international relations.
>>>
>>>Prove it.
>>
>>Help yourself--
>>
>>http://www.constitution.org/vattel/vattel.htm
>
>This isn't proof. I don't know who they are. You keep quoting the same
>page ad nauseum without ever proving your point.
This is a very accessible work. I don't want to take quotes from
it. Go spend 15 or 20 minutes with it, puruse it, read the
section headings, sample some of the text.
It's not going to bite you, for one. And I have no idea, even
from the deepest context of this discussion, what would
constitute "proof" to you if not the work itself.
<snip>
>>You have the url for the The Law of Nations. It's divided into Books and
>>sections, very clearly presented, and deals with all the fundamental
>>issues of the relations between sovereign states (that's in Book II, Book
>>I deals with the nature of the sovereign state itself) which remain
familiar
>>to us in the present.
>
>No. You make a case.
O.K. I officially present Book II of Vattel's The Law of Nations as
a clear and convicing case that an important natural law philosopher
dealing with the issues of relations between sovereign states
enunciates principles of international law and relations that
are still very much relevant to, and in fact are the theoretical
basis of, current international law and affairs.
If anyone would like to sample that work and see for themselves
whether my "case" is valid or not, the url is--
http://www.constitution.org/vattel/vattel.htm
<snip>
Martin McPhillips
>On Thu, 27 Apr 2000 15:50:53 -0400, "Martin McPhillips"
><cay...@nyct.net> wrote:
>
>>Scott D. Erb wrote in message <39088819...@maine.edu>...
>>>
>>>
>>>Martin McPhillips wrote:
>>>
>>>> their theoretical roots.
>>>
>>
>>Not really. There are borrowings from Roman law, apparently,
>
>Yes, but Roman law is not American law. In Roman law people can simply
>be arrested while waiting for trial without charges. This is true
>today in Europe. However the customs are different here in this
>country.
Yes, I'm sure.
>[snipped general assertions]
>
>>> Customs emerge from common
>>>practices, not from theories.
>>
>>That's not the point. The point is how are differing customs handled
>>with respect to inter-nation relations. (There are specific national
>
>See the single problem presented above. Another interesting problem
>was the taking of Adolf Eichmann and international conflicts that
>resulted. So customs were not the same in all aspects of this case
>forcing the Israelis to apologize. They didn't have to send Eichmann
>back.
Very good then.
Scott D. Erb
Martin McPhillips wrote:
>That's not what is happening here. This is a specific discussion as
> to whether the natural law theorists, like Vattel, provide the foundation,
> yes, the *source*, for what is international law as it is known today.
No, that's not the case. Different theorists ideas inspired various bits of
international law, but when I talked about the sources of international law I
was using a precise term in the legal jargon of international law (see the
Slomanson text, the chapter on "Sources of International Law") about where
international law comes from. These sources are custom, agreements and
treaties, and international organizations. I clearly noted that people creating
the agreements and customs may believe that natural law theories support their
acts, but they also might not.
> Here we have a text on-line to which anyone following along can
> refer. I think that anyone who gives Vattel's The Law of Nations
> a fair glance will find that 250 years have hardly dimmed the
> relevance of this basic work.
The work is fine, though it doesn't at all contradict any claim I made. I'm not
even sure why you jumped into this, you don't seem to be making a clear argument
here, or addressing the issues I've brought up. You seem to be misrepresenting
the discussion and my claims. Perhaps you should go read through the thread
again, and maybe offer a clear statement of your position and why you hold it.
It may be that my claims are not contradicting it. Be specific, so far you've
been rather vague and unclear, looking more like you want to pick a fight than
really discuss an issue.
Scott D. Erb
Martin McPhillips wrote:
> >The theoretical roots are subject to debate.
>
> Not really. There are borrowings from Roman law, apparently,
> but you'll find very little in Vattel that's not directly familiar
> to current issues of international law and relations. I mean,
> why would something with such *direct* linkage to the
> ongoing issues be debateable?
There are many debates about international law and its theoretical roots. You
seem to say that one can trace many of the current ideas to particular
theories -- that is true. But there is debate about whether current theories
are accurate, and in fact a lot of ideas have been disregarded over the years.
> One could say, "well,
> this has changed, or that has," but the larger framework
> certainly hasn't. In fact, in looking at Vattel's work, I see someone
> who could step right into the middle of a contemporary
> dispute and handle it without the blink of an eye.
I don't see where you're getting that; I certainly see nothing in your URL
which at all addresses these issues. Oh well.
> > Customs emerge from common
> >practices, not from theories.
>
> That's not the point. The point is how are differing customs handled
> with respect to inter-nation relations. (There are specific national
> customs and then there is international customary law. There is
> nothing in either of those two distinct matters, whichever you are
> referring to, that, per se, contradict natural law as it governs
> relations between states).
A couple of things. First, I haven't said that customs contradict natural
law. I've said that you could look at customs or agreements as either being
based in natural law, or being social constructs. Either interpretation can
work; most scholars now choose the latter, you apparently choose the former.
I think there are valid arguments on both sides, I'm not arguing that natural
law does not exist.
> >Some customs recognized by international law have
> >no basis in any claim of natural law;
>
> There's no specific need for them to have or to prove that they
> have such a claim. Customs are customs. (You know, I think that
> you are confusing *customs* per se, with international customary
> law. The latter is the significant player in international law. The former
> is an incidental question for mutual respect.)
Customs are a source of international law. If you have a case and you can
prove that a particular practice is customary, that is a valid argument for
international law (e.g., rules on the high seas, etc.)
> I'll leave you off there. Why don't you get those two things
> straightened out so everyone will be sure what you are referring to.
> Are you referring to national customs, per se, or international
> customary law?
I've never been referring to national customs here, quite clearly.
cheers, scott
Scott D. Erb
Martin McPhillips wrote:
> So, you *didn't* say that international law is *not* *based* in natural law.
>
> You said, rather, that natural law is *not* *considered* a *source* for
> international law, but that customs, etc., are.
And more directly, there is nothing inherent in how international law is
practiced which requires a belief in natural law; most scholars I know of in
fact do not rest on a legal theory involving international law.
> Well, I'll go you one better on that: The respect for local custom, the
> development of customary law, the basis upon which all *workable*
> treaties and agreements are negotiated, and the principles upon
> which international organizations and conferences *successfully*
> set standards and otherwise do their work, *all* have their source
> in the principles of natural law as laid out by theoreticians like
> Vattel.
So you assert. However, that assertion is certainly unproven, and one can also
assert that customs are merely social and political constructs. You state your
position, but you pretend that somehow you've proven your position. You
haven't. I'm stating that one can claim these things come from either natural
law, or can be seen as social constructs (those social practices which work
persist, those which don't get replaced by new social constructs).
International law can be explained both ways. If you want to say only one is
valid, you have to do more than just assert it and quote some vague claims from
a philosopher who a couple centuries ago believed in some kind of natural law
(though I don't see anything of significance in your URL to this issue). By the
way, you don't have to keep posting the URL, if people haven't gone there by
now, they probably won't. I think its off base for this discussion, it
certainly doesn't prove anything. If you think it does post specifically that
section, rather than a vague URL . It makes it appear that maybe you're hoping
people think it says more than it does.
cheers, scott
Mike Curtis
>Mike Curtis wrote in message <3908a0e6...@news.sig.net>...
>>On Thu, 27 Apr 2000 15:00:00 -0400, "Martin McPhillips"
>><cay...@nyct.net> wrote:
>>
>>>Mike Curtis wrote in message <3908851b....@news.sig.net>...
>>>>On Thu, 27 Apr 2000 14:16:19 -0400, "Martin McPhillips"
>>>><cay...@nyct.net> wrote:
>>>>
>>>>>Scott D. Erb wrote in message <390872C8...@maine.edu>...
>>>>>>
>>>>>>
>>>>>>Martin McPhillips wrote:
>>>>>>
>>>>>>> And Vattel will tell you that custom must be observed, and that
>>>>>>> treaties must be made. Natural law underlies the observance
>>>>>>> of both convention and custom.
>>>>>>
>>>>>>Again, I'm dealing with international law as it is currently defined.
>>>>>
>>>>>Not really. You're attempting to separate current structures from
>>>>>their theoretical roots. If you do that to a real building, i.e., take
>>>>>away its sub-structure, you wind up with a pile of bricks. That's
>>>>>a good analogy to treating international law without reference
>>>>>to its theoretical base (and it's a remarkably practical theoretical
>>>>>base, as any good structural foundation has to be).
>>>>
>>>>He's telling you that its theoretical based has changed since the
>>>>16th, 17th, 18th and even the 19th centuries. Individual countries
>>>>have different views of what is natural as far as law is concerned.
>>>>That's why there are treaties and agreements.
>>>
>>>I suggest you read Vattel on these questions.
>>
>>He's pretty vague. Why just him. what's wrong with the others? Why are
>>you singling him out?
>
>I'm "singling him out" because his work is available on-line, and
>therefore anyone interested can refer to it. I haven't found on-line
>versions of the others yet.
Then he just a pick of the moment so that you can make vague points.
Yet he isn't the only philosopher or influence in this area.
>And "he's pretty vague?"
Yes. His claims to natural law are pretty vague.
> This is a work of political philosophy that
>deals with the nature of states and their relations to one another.
>It's no more "vague" than most works of its kind, then or now.
This was a discussion concerning natural law. If you want a point to
be made by Vattel then quote it directly along with the proper URL so
those of us involved can check the context.
>>> The natural law
>>>he uses in The Law of Nations specifically takes into account
>>
>>What law of nations?
>
>"The Law of Nations" is the title of his treatise.
>
>>>individual differences in countries, the whys and wherefores
>>>of treaties, and the importance of customs and their observance.
>>
>>Pretty vague.
>
>You can always go and have a look for yourself.
I did. So what's the point *you* want to make?
>>>His theoretical structure is, in fact, precisely amenable to your
>>>view as implied in the above paragraph.
>>
>>Except I'm not being vague. I gave examples that no one is addressing.
>
>O.K.
Exactly. Now it is your turn.
>>>>>(And I made a very specific request to you not to again snip
>>>>>the url for Vattel's The Law of Nations, so that other readers
>>>>>could refer to it at their convenience. Please leave this link
>>>>>in any response)--
>>>>>
>>>>>http://www.constitution.org/vattel/vattel.htm
>>>>>
>>>>>I again recommend Book II, which is remarkably relevant to
>>>>>current discussion of international law, given that it was written
>>>>>250 years ago.
>>>>
>>>>He isn't saying it isn't relevant. He is saying that times have
>>>>changed and viewpoints have changed. Philosophers have moved on.
>>>
>>>You will find out, by reading Vattel, that some of them haven't
>>
>>Vattel is hardly modern.
>
>All right.
Point made.
>>so [snip]
>>
>>>>>>The
>>>>>>sources of international law do not include natural law,
>>>>>
>>>>>Of course they do. The entire theoretical base for it is drawn
>>>>>from natural law philosophers who dealt with international law
>>>>>and international relations.
>>>>
>>>>Prove it.
>>>
>>>Help yourself--
>>>
>>>http://www.constitution.org/vattel/vattel.htm
>>
>>This isn't proof. I don't know who they are. You keep quoting the same
>>page ad nauseum without ever proving your point.
>
>This is a very accessible work. I don't want to take quotes from
>it. Go spend 15 or 20 minutes with it, puruse it, read the
>section headings, sample some of the text.
I have but I haven't a clue what you make of it. I really believe at
this point that you really do not understand the argument you want to
make by using Vattel.
>>No. You make a case.
>
>O.K. I officially present Book II of Vattel's The Law of Nations as
>a clear and convicing case that an important natural law philosopher
>dealing with the issues of relations between sovereign states
>enunciates principles of international law and relations that
>are still very much relevant to, and in fact are the theoretical
>basis of, current international law and affairs.
This is not an example but bluster.
I don't think you've read the URL you spread around.
Mike Curtis
as algernon sidney wrote:
Liars ought to have good memories.
Discourses on Government. Chap. ii. Sect. xv.
Mike Curtis
Mike Curtis
>Mike Curtis wrote in message <3908a216...@news.sig.net>...
>>On Thu, 27 Apr 2000 15:50:53 -0400, "Martin McPhillips"
>><cay...@nyct.net> wrote:
>>
>>>Scott D. Erb wrote in message <39088819...@maine.edu>...
>>>>
>>>>
>>>>Martin McPhillips wrote:
>>>>
>>>>> Not really. You're attempting to separate current structures from
>>>>> their theoretical roots.
>>>>
>>>>The theoretical roots are subject to debate.
>>>
>>>Not really. There are borrowings from Roman law, apparently,
>>
>>Yes, but Roman law is not American law. In Roman law people can simply
>>be arrested while waiting for trial without charges. This is true
>>today in Europe. However the customs are different here in this
>>country.
>
>Yes, I'm sure.
I'm not only sure but I'm positive. Seems you aren't able to deal in
specifics?
>>[snipped general assertions]
>>
>>>> Customs emerge from common
>>>>practices, not from theories.
>>>
>>>That's not the point. The point is how are differing customs handled
>>>with respect to inter-nation relations. (There are specific national
>>
>>See the single problem presented above. Another interesting problem
>>was the taking of Adolf Eichmann and international conflicts that
>>resulted. So customs were not the same in all aspects of this case
>>forcing the Israelis to apologize. They didn't have to send Eichmann
>>back.
>
>Very good then.
So the discussion is over?
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>>That's not what is happening here. This is a specific discussion as
>> to whether the natural law theorists, like Vattel, provide the
foundation,
>> yes, the *source*, for what is international law as it is known today.
>
>No, that's not the case. Different theorists ideas inspired various bits
of
I
>was using a precise term in the legal jargon of international law (see the
>Slomanson text, the chapter on "Sources of International Law") about where
>international law comes from.
If you have it, quote the essential paragraph relevant to the use of
"sources" as a "precise term."
>These sources are custom, agreements and
>treaties, and international organizations.
You keep repeating this, but it's not obvious that you have any clear
idea what the implications of these "sources" are.
>I clearly noted that people creating
>the agreements and customs may believe that natural law theories support
>their
>acts, but they also might not.
It doesn't make any difference if they do or not. Natural law isn't somehow
turned off by "belief." It functions at the very core of relations between
states in such concepts as reciprocity and comity.
>> Here we have a text on-line to which anyone following along can
>> refer. I think that anyone who gives Vattel's The Law of Nations
>> a fair glance will find that 250 years have hardly dimmed the
>> relevance of this basic work.
>
>The work is fine, though it doesn't at all contradict any claim I made.
It demonstrates the importance of natural law theory to the development
of international law.
> I'm not
>even sure why you jumped into this, you don't seem to be making a clear
>argument
>here,
It's a perfectly clear argument. You've now informed me that "source"
has a "very specific meaning," but you haven't said what it is.
I've said that natural law theory represents the theoretical basis
of international law, and by any meaning of the word "source" (that
isn't the "very specific" one you haven't disclosed) that natural
law theory can also said to be the *source* of international law (and
we've had the Nuremberg example as an instance where
natural law was brought out of its theoretical confines and applied
directly). The problem with understanding natural law is that
it is actuated usually only through positive law, so it doesn't
appear outside of its theoretical form that easily.
> or addressing the issues I've brought up.
You haven't brought up that many issues, Scott, unless you're
alluding to something other than what you've said several
times now
> You seem to be misrepresenting
>the discussion and my claims.
Well, any time you feel like that, you can try to make it clear,
but so far you really haven't said that much. You clip out the
bulk of the posts you are responding to and repeat this
bit about the "sources being, etc." And now you've offered
that "sources" has a "very specific meaning," which would seem
to me to be germane to your claims, but you haven't said what
it is.
> Perhaps you should go read through the thread
>again, and maybe offer a clear statement of your position and why you hold
it.
>It may be that my claims are not contradicting it. Be specific, so far
you've
>been rather vague and unclear, looking more like you want to pick a fight
than
>really discuss an issue.
I've been perfectly clear. The natural law theorists dealing with
inter-national
relations provided the superstructure of international law, and are the
source of international law. Custom, customary law, treaties, conventions,
etc. are all workable to the extent that they conform with the principles
of natural law, which call for reciprocity and comity, and recognize the
difference between good conduct and bad.
Scott Erb
Martin McPhillips wrote:
> It's not a "tactic" designed to "fool" either you, or "some readers."
OK, I'll trust you. I just don't see how it applies to anything I claimed.
> It's an accessible on-line version of a standard classical treatise on
> international law and relations. And it demonstrates quite consistently
> where the principles of international law are drawn from.
>
> The work as a whole is remarkably internally consistent, as I have
> found it so far, and I recommend that interested readers puruse it
> at their leisure and comment thereupon, also at their leisure.
>
> The url, again, which is to an on-line version of Vattel's
> The Law of Nations--
>
> http://www.constitution.org/vattel/vattel.htm
I certainly would recommend reading it, as well as Grotius. I still prefer
Kant, but I'm really not certain how this relates to any claims I made.
ciao, scott
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> >The theoretical roots are subject to debate.
>>
>> Not really. There are borrowings from Roman law, apparently,
>> to current issues of international law and relations. I mean,
>> why would something with such *direct* linkage to the
>> ongoing issues be debateable?
>
>There are many debates about international law and its theoretical roots.
You
>seem to say that one can trace many of the current ideas to particular
>theories -- that is true. But there is debate about whether current
theories
>are accurate, and in fact a lot of ideas have been disregarded over the
years.
It's really not that complicated. The basic rules of reciprocity and comity
promote peace and successful relations between states. Actions
in bad faith, unjustified use of force, criminal behavior, result in bad
relations and sometimes war. But the conduct of affairs in accordance
with treaty or customary law, whether political or commercial, is
governed by the principles of natural law, which are essentially that
relations between states should be amicable and in accordance
with the best interests of the individual states and the interests of
their people. And that no state acting in its own interest should
thereby do harm to the interest of another without justification.
>> One could say, "well,
>> this has changed, or that has," but the larger framework
>> certainly hasn't. In fact, in looking at Vattel's work, I see someone
>> who could step right into the middle of a contemporary
>> dispute and handle it without the blink of an eye.
>
>I don't see where you're getting that; I certainly see nothing in your URL
>which at all addresses these issues. Oh well.
That's too bad.
I would have thought that a category titled...
§ 1. Foundation of the common and mutual duties of nations.
[...which concludes in part with this high sentiment..]
"And why should we not hope still to find, among those who are the head of
affairs, come wise individuals who are convinced of this great truth, that
virtue is, even for sovereigns and political bodies, the most certain road
to prosperity and happiness?
...
Nations, being obliged by nature reciprocally to cultivate human society
(Prelim. § 11), are bound to observe towards each other all the duties which
the safety and advantage of that society require."
...might strike you as the basis for all successful negotiations between
states, since, of course, it is.
And the proper way to refer to the work in question is as "Vattel"
or "The Law of Nations" or "Vattel's The Law of Nations," not as
"your URL."
>> > Customs emerge from common
>> >practices, not from theories.
>>
>> That's not the point. The point is how are differing customs handled
>> with respect to inter-nation relations. (There are specific national
Well, it wasn't that clear, since I had to ask for clarification.
Martin McPhillips
>
>
>Martin McPhillips wrote:
>
>> So, you *didn't* say that international law is *not* *based* in natural
law.
>>
>> You said, rather, that natural law is *not* *considered* a *source* for
>> international law, but that customs, etc., are.
>
>And more directly, there is nothing inherent in how international law is
>practiced which requires a belief in natural law; most scholars I know of
in
>fact do not rest on a legal theory involving international law.
Well, you can always cite any of those scholars that you know, and
summarize the legal theory on which they do rest. But, otherwise,
pointing off-stage to "most scholars" doesn't help, i.e., there's
nothing that can be responded to.
>
>> Well, I'll go you one better on that: The respect for local custom, the
>> development of customary law, the basis upon which all *workable*
>> treaties and agreements are negotiated, and the principles upon
>> which international organizations and conferences *successfully*
>> set standards and otherwise do their work, *all* have their source
>> in the principles of natural law as laid out by theoreticians like
>> Vattel.
>
>So you assert.
Yes, I do, and *you* give the reason why...
> However, that assertion is certainly unproven, and one can also
>assert that customs are merely social and political constructs.
Based on reciprocity and comity. Launching five divisions of tanks
across a frontier is a means of relating to other nations, too,
but unless it is provoked, it's a violation of the natural respect
sovereign nations must have for one another under natural law.
There are many things that you can call "social and political
constructs," but unless they conform to natural law, you don't
have peace and comity, you have conquest and obliteration,
or simple cheating and advantage-taking. The values of modern
liberal democracy, the ascendant form of government in the world
are the values of natural law. Vattel begins his discussion
of relations between nations saying that he is about to invite
the ridicule of cabinet ministers. Why? Because he annunciates
as natural law mutual respect between nations, a respect that
cannot be disavowed because of cultural or religious differences,
that can only be disavowed if the "prince" of a particular sovereign
country is, in essence, a criminal tyrant, or becaise a nation launches
an unjust war.
These are precisely the values of contemporary international
law and international relations: reciprocity, comity, respect.
Neither customary law nor conventional law that flies in the
face of those values is going to be considered valid. You're
not going to have a customary relationship based on extortion,
for instance. It's just not going to happen. Natural law posits
the values that work.
>You state your
>position, but you pretend that somehow you've proven your position. You
>haven't. I'm stating that one can claim these things come from either
natural
>law, or can be seen as social constructs (those social practices which work
>persist, those which don't get replaced by new social constructs).
That's not the question. The question is *why* do they work? And
*why* do they work as opposed to conquest and taking? By your
suggestion of "evolution" you are immediately confronted with
the *why* of the direction of the modern world. *Why* a moral
approach to the values of international law? The answer is: the
law *must* be moral or it is invalid. How could it be moral without
the template of natural law as its guide? It's never just a question
of "construct." Construct can give you *anything.* It can give
you concentration camps and euthanasia and political murder.
Natural law is moral law, found by the light of reason in the heart.
Writ large upon the world, it calls for reciprocity, comity, respect
among nations, and for just agreements, advantageous to
all sovereign parties to them, and to their people.
>International law can be explained both ways.
I've just shown you why it can't. It's not just a question
of what works and what doesn't. It's a question of what
is *good* for nations and for their people. The workability
of their mutual or multi-lateral arrangements, if the aim
is peace and mutual respect, depends on the higher
values of natural law.
Martin McPhillips
>"Martin McPhillips" <cay...@nyct.net> wrote:
>
>>>
>>>He's pretty vague. Why just him. what's wrong with the others? Why are
>>>you singling him out?
>>
>>I'm "singling him out" because his work is available on-line, and
>>therefore anyone interested can refer to it. I haven't found on-line
>>versions of the others yet.
>
>Then he just a pick of the moment so that you can make vague points.
No, I've posted the link to The Law of Nations in good faith as
a resource to the readers here. If you're not interested, then
I'll just drop you off right here.
>Yet he isn't the only philosopher or influence in this area.
Who said he was? But he's working with all the basic
principles in the natural law tradition.
<snip>
Martin McPhillips
>>>On Thu, 27 Apr 2000 15:50:53 -0400, "Martin McPhillips"
>>><cay...@nyct.net> wrote:
>>>
>>>>Scott D. Erb wrote in message <39088819...@maine.edu>...
>>>>>
>>>>>
>>>>>Martin McPhillips wrote:
>>>>>
>>>>>> Not really. You're attempting to separate current structures from
>>>>>> their theoretical roots.
>>>>>
>>>>
>>>>Not really. There are borrowings from Roman law, apparently,
>>>
>>>be arrested while waiting for trial without charges. This is true
>>>today in Europe. However the customs are different here in this
>>>country.
>>
>>Yes, I'm sure.
>
>I'm not only sure but I'm positive. Seems you aren't able to deal in
>specifics?
You jumped into the middle of a paragraph about how there
were influences from Roman law in international law with a
non-sequitur (as far as I was concerned) about how Roman
law is not American law, etc. (it's still there, you can read it)
that wasn't pertinent to anything I was discussing. (Did you
want to switch from a discussion of international law to
comparative law? If so, you need to say so.)
Martin McPhillips
+AD4-
+AD4-
+AD4-Martin McPhillips wrote:
+AD4-
+AD4APg- It's not a +ACI-tactic+ACI- designed to +ACI-fool+ACI- either you, or +ACI-some readers.+ACI-
+AD4-
+AD4-OK, I'll trust you. I just don't see how it applies to anything I claimed.
As you would have it.
+AD4APg- It's an accessible on-line version of a standard classical treatise on
+AD4APg- international law and relations. And it demonstrates quite consistently
+AD4APg- where the principles of international law are drawn from.
+AD4APg-
+AD4APg- The work as a whole is remarkably internally consistent, as I have
+AD4APg- found it so far, and I recommend that interested readers puruse it
+AD4APg- at their leisure and comment thereupon, also at their leisure.
+AD4APg-
+AD4APg- The url, again, which is to an on-line version of Vattel's
+AD4APg- The Law of Nations--
+AD4APg-
+AD4APg- http://www.constitution.org/vattel/vattel.htm
+AD4-
+AD4-I certainly would recommend reading it, as well as Grotius. I still prefer
+AD4-Kant, but I'm really not certain how this relates to any claims I made.
+AD4-ciao, scott
Very well then.
Scott Erb
Martin McPhillips wrote:
> Based on reciprocity and comity. Launching five divisions of tanks
> across a frontier is a means of relating to other nations, too,
> but unless it is provoked, it's a violation of the natural respect
> sovereign nations must have for one another under natural law.
????? How do you get natural law out of that? What exactly is natural law, can
you give me an operational definition?
> There are many things that you can call "social and political
> constructs," but unless they conform to natural law, you don't
> have peace and comity,
So? Why must one have peace and comity? And what if there are many equivalent
acts that can give peace and comity; sometimes acts in one culture can cause
peace while they may create conflict in another. If it were "natural law" they
would have to be universally valid. Also, I'm not even touching yet the issue
of how these terms are defined and what they mean in context.
> you have conquest and obliteration,
> or simple cheating and advantage-taking.
So, if you have that, you still can have a culture where that is the norm.
> The values of modern
> liberal democracy, the ascendant form of government in the world
> are the values of natural law.
That assertions is vague and sounds more like a self-serving bias for one's own
kind of system. It certainly isn't grounded philosophically.
> Vattel begins his discussion
> of relations between nations saying that he is about to invite
> the ridicule of cabinet ministers. Why? Because he annunciates
> as natural law mutual respect between nations, a respect that
> cannot be disavowed because of cultural or religious differences,
> that can only be disavowed if the "prince" of a particular sovereign
> country is, in essence, a criminal tyrant, or becaise a nation launches
> an unjust war.
Machiavelli seems to have figured out how politics works in a different way,
perhaps he's closer to natural law. Or perhaps there is no natural law, perhaps
Vattel is deluded in thinking these things transcend culture (that is the common
view now a days).
> These are precisely the values of contemporary international
> law and international relations: reciprocity, comity, respect.
You're being vague, and certainly one can have all of these (or lack them)
whether or not natural law exists. You haven't given a precise definition.
You seem to be saying at base something like: things that create peace adhere to
natural law, things that don't, violate natural law. But many things can create
peace and comity, and certainly one can have a social system based on violence
and antagonism. I'd recommend Alex Wendt's "Social Theory of International
Politics" (I've notes for it on my webpage). It takes a different track on
these issues, one philosophically more grounded and precise.
> Neither customary law nor conventional law that flies in the
> face of those values is going to be considered valid. You're
> not going to have a customary relationship based on extortion,
> for instance. It's just not going to happen. Natural law posits
> the values that work.
You're pulling a concept of natural law out of your pocket like deus ex
macchina. You can have systems that work via extortion, you can have cultures
that don't. No, I see what you're saying (things run smoother and more
peacefully in some circumstances, so we can posit those kinds of behavior as
natural law), but one can also say that culturally those things simply allow us
to achieve our goals better and therefore its rational to construct that kind of
system -- one does not need the excess concept of "natural law."
> That's not the question. The question is *why* do they work? And
> *why* do they work as opposed to conquest and taking? By your
> suggestion of "evolution" you are immediately confronted with
> the *why* of the direction of the modern world.
Again, I'll point to Wendt's book as a good approach, and note that a
tautological definition of natural law (anything that works is natural law, and
natural law is known by what works) doesn't really add much, and ends up a
useless concept. One can use pragmatism (do what works, construct a system that
works based on what one's goals are) just as easily.
> *Why* a moral
> approach to the values of international law? The answer is: the
> law *must* be moral or it is invalid. How could it be moral without
> the template of natural law as its guide? It's never just a question
> of "construct." Construct can give you *anything.* It can give
> you concentration camps and euthanasia and political murder.
Yes, constructs can give us anything, and they do. There are many views on
natural law; one can also claim that we can simply choose to construct what we
think best, regardless of a belief in natural law. Natural law as you define it
is a vague "what works" and can be full of cultural baggage you don't recognize
as baggage because you're deep within a western culture.
I sympathize and don't totally disagree, but I think you're overlooking some
problems in your approach and overstating your case.
> Natural law is moral law, found by the light of reason in the heart.
Now THAT is really vague, and a difficult operationalization of what natural law
is. Its also quite subjective, as hearts see things in different lights (to
continue with the metaphor.)
> Writ large upon the world, it calls for reciprocity, comity, respect
> among nations, and for just agreements, advantageous to
> all sovereign parties to them, and to their people.
So you claim, but one can have that without natural law, and even if that works,
that doesn't really show that there is any kind of natural law, only that some
behaviors yield some results we prefer. Its rational to choose those behaviors
out of self-interest, regardless of some concept of natural law. And those
behaviors may very from culture to culture.
> >International law can be explained both ways.
>
> I've just shown you why it can't.
No, you've posited a vague notion of natural law which basically says "if it
works to bring more peace, its natural law' and its found in the heart. That
really doesn't cut it for more than belief in something vague and unclear. The
terms like "respect," etc. are difficult to define in context, and abstract.
Language itself is a social construct, and the definitions are unclear. No,
again, I sympathize with the intent, but think you overstate your case. I again
point you to my post a few weeks ago where I deal with these same issues, but
try to avoid the vagueness and lack of clarity a concept of natural law has.
> It's not just a question
> of what works and what doesn't. It's a question of what
> is *good* for nations and for their people.
That is an issue that is also contestable. People have different notions of
what is good.
> The workability
> of their mutual or multi-lateral arrangements, if the aim
> is peace and mutual respect, depends on the higher
> values of natural law.
You state assertions as if they were proofs. That's really not enough.
ciao, scott
Rick Gardiner
>
> Martin McPhillips wrote:
>
> > So, you *didn't* say that international law is *not* *based* in natural law.
> >
> > You said, rather, that natural law is *not* *considered* a *source* for
> > international law, but that customs, etc., are.
>
> And more directly, there is nothing inherent in how international law is
> practiced which requires a belief in natural law; most scholars I know of in
> fact do not rest on a legal theory involving international law.
Mr. McPhillips has tried again and again to explain to you the logic
of this point that you continue to dodge, equivocate, and smokescreen.
Look, this is a simple GRE analytical question:
There are three concepts: International law (I), custom (C), and
natural law (N).
Here are the rules
I is dependent upon C
C is dependent upon N
From this which of the following is a legitimate deduction--
a. C is dependent on I
b. N is dependent on I
c. I is dependent on N
d. I is not dependent on N
If you scored over 200 on your analytical GRE, you answered "c" which
is the correct and true answer.
Now, before you jump down my throat and insist that you only said that
"a case could be made" that custom is based in natural law, but that
you said that "customs could also be seen as simly societal and
political constructs, believe me, I read that.
The problem is that if you take that alternative, and base customs
entirely in socio-cultural constructs, then you really don't have a
leg to stand on when trying to enforce international law. One society
can simply say to the next, "our society has never adopted the custom
whereby we forbid the extermination of semitic humans" and thus,
international law would not apply if indeed societal customs are the
ultimate ground for international law.
On the other hand, if International Law is grounded in Natural law, as
was the belief of Grotius, Vattel, Pufendorf, Jefferson, Adams, most
of the U.S founders, and Robert Jackson (our rep at Nuremberg), then
there can indeed be such thing as an international Tribunal whose
authority is binding upon all human societies.
This is really a simple concept. Mr. McPhillips has done a commendable
job explaining it to you. Your game-playing and equivocation with the
concept of "custom" is easily identified as an attempt to confuse a
quite simple matter.
RG
Rick Gardiner
Mike Curtis wrote:
>
> On Thu, 27 Apr 2000 15:39:27 GMT, Richard A. Schulman
> <RichardAS...@att.net> wrote:
>
> >Richard Schulman:
> >>>"If each nation were free to declare unilaterally that it is no longer
> >>>bound by international law, the result would be anarchy. A test was
> >>>provided in the conduct of Germany under Nazi rule. The Nürnberg
> >>>tribunals held that the German government regulations that ordered,
> >>>for example, the killing of prisoners of war in contravention of the
> >>>generally valid rules of warfare were null and void and that the
> >>>persons responsible for issuing and executing such orders were
> >>>criminally responsible for violations of international law."
> >>>("International Law," Microsoft® Encarta® Encyclopedia 99. © 1993-1998
> >>>Microsoft Corporation. All rights reserved.)
> >>>
> >>>The quote above also disproves Mike Curtis's claim that the Nürnberg
> >>>prosecutions were for violations of German law.
> >
> >Mike Curtis:
> >>You do not seem to get it. First my claim is that violations of the
> >>German law were not the only charges at Nuremberg or the sum total
> >>reasoning behind the indictments.
> >
> >I'm glad you have taken the opportunity to clarify (or correct) your
> >viewpoint, as the case may be.
>
> You need not add the "correc" my claim for my claim hasn't changed
> since I first asserted it.These threads are continuing conversation
> and no one post of mine stands alone
But when a person says something like "They violated German law,
PERIOD" the way that you did, you do not leave room for qualifications.
Perhaps you need to learn what the word "PERIOD" denotes in common
usage. It implies a sense of finality, a sense of completeness, and a
sense that there is nothing more to be said on the matter.
"The Nazis violated German law period. That is what they were tried on
in trials held by the allies and themselves." --Mike Curtis http://x45.deja.com/getdoc.xp?AN=614362324
It's what you posted. You can deny it if you want. Unfortunately,
Deja.com is an objective archive.
RG
Rick Gardiner
"Scott D. Erb" wrote:
>
> Martin McPhillips wrote:
>
> > >Current practice of international law does not rely on or require natural
> > >law theory.
> >
> > Of course it does. The general principles behind treaties/conventions
> > and customary law are found in the natural law theories of Vattel and
> > others.
>
> Again, it is a very common argument that these are social constructs, and not
> natural law, even if some philosophers believe they come from natural law. You
> have not yet addressed that point.
>
> I suggest you deal with the argument
Right on.
The problem is that if you base customs
Rick Gardiner
>
> Most legal scholars
> are legal positivists, but that doesn't mean they deny that earlier scholars had
> a belief in natural law. Belief in natural law is just less common now than it
> used to be.
http://rampages.onramp.net/~alaska/reporter/fallacy/page28.htm
RG
Rick Gardiner
>
> Mike Curtis wrote:
>
> > >
> > >I'm glad you have taken the opportunity to clarify (or correct) your
> > >viewpoint, as the case may be.
> >
> > You need not add the "correc" my claim for my claim hasn't changed
> > since I first asserted it.
>
> somehow he made you change your statement.
Erb and Curtis are prima facie liars. Here are the facts:
Mike Curtis wrote:
"my claim is that violations of the German law were not the only
charges at Nuremberg or the sum total reasoning behind the indictments"
AND HE ALSO WROTE--
"The Nazis violated German law period. That is what they were tried on
in trials held by the allies and themselves."
These statements are the most direct contradictory statements that a
logician could ever face. I even believe that Erb has had enough
elementary logic to see the glaring contradiction. I also believe that
Erb knows deep down that he has made himself look like a fool in
coming to Curtis' rescue on this one.
> He's probably not worth spending much time on, I fear we grant him more
> credibility than he deserves.
Show us a contradiction in Schulman as blatant as the one above
committed by Curtis. You can't. Schulman is too careful. His
credibility remains intact, while Curtis has been exposed as
double-tongued and demonstrably illogical. Erb feels compelled to
defend Curtis' faulty logic. I think Mr. Schulman may have a
legitimate observation about Erb's potential problems with tenure.
RG
Rick Gardiner
>
> so far you've
> been rather vague and unclear, looking more like you want to pick a fight than
> really discuss an issue.
Not again, Erb. Please. This old maneuver is so childish.
RG
Rick Gardiner
Mike Curtis wrote:
>
> "Martin McPhillips" <cay...@nyct.net> wrote:
>
> >This is a work of political philosophy that
> >deals with the nature of states and their relations to one another.
> >It's no more "vague" than most works of its kind, then or now.
>
> This was a discussion concerning natural law. If you want a point to
> be made by Vattel then quote it directly along with the proper URL so
> those of us involved can check the context.
Right on. We can do that.
=======
FROM Book I of the Law of Nations (http://www.constitution.org/vattel/vattel_pre.htm_)
It is a settled point with writers on the natural law, that all men
inherit from nature a perfect liberty and independence, of which they
cannot be deprived without their own consent.
[Jefferson echoes]...
§ 5. To what laws nations are subject.
As men are subject to the laws of nature, — and as their union in
civil society cannot have exempted them from the obligation to observe
those laws, since by that union they do not cease to be men, — the
entire nation, whose common will is but the result of the united wills
of the citizens, remains subject to the laws of nature, and is bound
to respect them in all her proceedings. And since right arises from
obligation, as we have just observed (§3), the nation possesses also
the same rights which nature has conferred upon men in order to enable
them to perform their duties
§ 6. In what the law of nations originally consists.
We must therefore apply to nations the rules of the law of nature, in
order to discover what their obligations are, and what their rights:
consequently, the law of Nations is originally no other than the law
of Nature applied to Nations...
§ 7. Definition of the necessary law of nations.
We call that the Necessary Law of Nations which consists in the
application of the law of nature to Nations. It is Necessary because
nations are absolutely bound to observe it. This law contains the
precepts prescribed by the law of nature to states, on whom that law
is not less obligatory than on individuals, since states are composed
of men, their resolutions are taken by men, and the law of nature is
binding on all men, under whatever relation they act. This is the law
which Grotius, and those who follow him, call the Internal law of
Nations, on account of its being obligatory on nations in point of
conscience. Several writers term it the Natural law of Nations.
Rick Gardiner
>
> Martin McPhillips wrote:
>
>
>
> >
> >
Kant, on the Law of Nations??? That must have been a lecture I missed
while earning my degree in philosophy.
> but I'm really not certain how this relates to any claims I made.
Simple, Duns. The claim that you have made is that "natural law is not
a source for international law," and Mr. McPhillips has offered a very
clear, concise, and compelling argument, in the words of Vattel, which
show that natural law is not only A source for natural law, but THE source.
Are you not going to be satisfied until Mr. McPhillips is forced to
make an Alisonian move by cutting and pasting the entire text of
Vattel's Book II in this newsgroup??
RG
Jeff Sinclair
"Martin McPhillips" <cay...@nyct.net> wrote:
> Scott D. Erb wrote in message <3908B3CB...@maine.edu>...
> >
> >
> >Martin McPhillips wrote:
> >
> >>That's not what is happening here. This is a specific discussion as
> >> to whether the natural law theorists, like Vattel, provide the
> foundation,
> >> yes, the *source*, for what is international law as it is known
today.
> >
> >No, that's not the case. Different theorists ideas inspired various
bits of
> >international law, but when I talked about the sources of
international law I
> >was using a precise term in the legal jargon of international law
(see the
> >Slomanson text, the chapter on "Sources of International Law") about
where
> >international law comes from.
>
> If you have it, quote the essential paragraph relevant to the use of
> "sources" as a "precise term."
That would normally be a reasonable request, except that when you have
been asked to be more specific concerning what constitutes "natural law"
and what does not in using especially Vattel, you have so far not been
able to clarify and help your case.
As I had mentioned previously, if you wish to assert that "natural law"
does such things as note that every society has prohibitions against
murder, incest, etc. and that there are basic human institutions in
every society, then you are on firm empirical ground. What this does
_not_ do, however, is account for the vast differences between societies
in _what_ constitutes murder, for example between societies, how these
definitions change over time, etc. and therefore we are left with a
highly general statement of what is "natural law".
Let us, for example, take the Vattel work on natural law you have cited.
(http://www.constitution.org/vattel/vattel.htm). Let's use the
preliminaries to give us a taste of the larger work (which would take
several hours to read in toto). It is fair to say that Vattel gives a
definition of what _he_ believes to be at the core of "natural law":
http://www.constitution.org/vattel/vattel_pre.htm#010
"Hence is deduced the establishment of natural society among men.
[Italics] The general law of that society is, that each individual
should do for the others every thing which their necessities require,
and which he can perform without neglecting the duty that he owes to
himself [End Italics]: (4) a law which all men must observe in order to
live in a manner consonant to their nature, and conformable to the views
of their common Creator - a law which our own safety, our happiness, our
dearest interests, ought to render sacred to every one of us. Such is
the general obligation that binds us to the observance of our duties:
let us fulfil them with care, if we would wisely endeavour to promote
our own advantage. (5)"
He later goes on to apply these general statements, describing the
behavior of the individual in society to the behavior of individual
nations within the society of nations:
http://www.constitution.org/vattel/vattel_pre.htm#011
"We have already seen, (§ 5), that men united in society remain subject
to the obligations imposed upon them by human nature. That society,
considered as a moral person, since possessed of an understanding,
volition, and strength peculiar to itself, is therefore obliged to live
on the same terms with other societies or states, as individual man was
obliged, before those establishments, to live with other men, that is to
say, according to the laws of the natural society established among the
human race, with the difference
only of such exceptions as may arise from the different nature of the
subjects."
What is immediately noticeable in these statements and in others is the
fact that they are in the subjunctive (should, ought) and not in the
declarative; Vattel is describing things as they ought to be, not as
they are (would that they were). Were they "laws" which described
empirical realities, evidence could be provided showing that these
observations are universally true among humankind both at the individual
and national levels. However, two major flaws exist in asserting that
these are universal.
The first I have mentioned before, namely, that when such statements
which note the importance of reciprocity and social contract in
individual and international relations are specified, how "reciprocity"
itself is defined as a taken-for-granted concept ("natural") differs
from culture to culture; rather significantly in many cases, especially
if the actors are from very different cultural traditions. Thus, even
the very general idea of "reciprocity" is open to vast interpretation.
Secondly, not unlike this, history bears witness to the fact that, on
the whole, neither individuals _nor_ nations have demonstrated
consistent adherence in real actions to this reciprocity that Vattel and
others would seem to assert is at the core of "natural law" (again, if
only that _were_ the case). To simply assert that nations or individuals
that do not understand it in the way that we do are merely violating an
"eternal principle" rather than noting that they may have a different
understanding of what is natural which is just as valid an hypothesis
(and one which is a better hypothesis given the facts) as setting up a
somewhat metaphysical ideal in the manner of Plato, probably says more
about us than it does about the other person or nation in most cases.
So, where the rubber must then hit the road is in showing with empirical
evidence that in the realm of the more specific and meaningful (for
example, concerning a more specific definition of _what_ murder or
incest is rather than just noting that prohibitions against them exist
in every society) what is "natural" is universal among cultures and does
not vary with the passage of time or the advent of new technologies. Do
that, and you will have gone far toward making your case that in the
realm of the specific, more specific things (i.e. - that a particular
form of sexuality is "natural" and all others deviant, that a particular
family structure is "natural", etc.) that have been often asserted to be
expressions of "natural law" are indeed "absolutes".
> >These sources are custom, agreements and
> >treaties, and international organizations.
>
> You keep repeating this, but it's not obvious that you have any clear
> idea what the implications of these "sources" are.
If you disagree with Scott, produce evidence that customs, agreements,
treaties, and international organizations are indeed _not_ sources of
international law. He has in other post produced specific evidence
showing that this is in fact the case (as for example, his noting the
nature of the UN Security Council). It is hard to argue that these
things that he mentioned are not sources.
> >I clearly noted that people creating
> >the agreements and customs may believe that natural law theories
support
> >their
> >acts, but they also might not.
>
> It doesn't make any difference if they do or not. Natural law isn't
somehow
> turned off by "belief." It functions at the very core of relations
between
> states in such concepts as reciprocity and comity.
Again, you need to prove this beyond just merely asserting without
evidence. Many agreements made at the international level can be shown
to be the result not of natural law, but of pragmatic considerations,
for example. Or of hashing out differences between international
antagonists with very different ideas of what is "natural" concerning
more specific issues. As noted before, what one nation may consider
"reciprocity", another cultural tradition may consider grand larceny.
Should you doubt this, simply examine the history of peace negotiations
between the Israelis and the Arabs, between the Catholics and
Protestants in Northern Ireland or, for that matter, between bitter
antagonists anywhere. When such things as "reciprocity" are defined in
more concrete terms, it becomes painfully clear that "natural law" is
anything but universally understood in similar terms.
> >> Here we have a text on-line to which anyone following along can
> >> refer. I think that anyone who gives Vattel's The Law of Nations
> >> a fair glance will find that 250 years have hardly dimmed the
> >> relevance of this basic work.
> >
> >The work is fine, though it doesn't at all contradict any claim I
made.
>
> It demonstrates the importance of natural law theory to the
development
> of international law.
But as only one factor of many, as has been noted, and only in the most
general terms. Also, as has been noted, what is considered "natural" is
considerably different today than it was in the time of Vattel, or
Grotius, or Locke, even in such generalities as "reciprocity" (which
would not have been applied in the way that we would understand it
today, for example, to social inferiors, slaves, etc. who were in some
sense not considered to really be "persons"). Even the thinking on
"natural law" changed among these theorists over their lifetimes (as for
example with Locke's understanding of the proper and "natural"
relationship between the people and the magistrate which differed rather
significantly I would say from his "Essay on Toleration" written in the
1660s to his "Second Treatise on Government" written in the 1680s).
> > I'm not
> >even sure why you jumped into this, you don't seem to be making a
clear
> >argument
> >here,
>
> It's a perfectly clear argument. You've now informed me that "source"
> has a "very specific meaning," but you haven't said what it is.
Neither have you given a specific meaning to the term "natural law" that
can be operationally defined and examined to determine its universality.
Tighten up your definition. Otherwise, "natural law" can only exist as a
hypothetical construct whose universal nature cannot be proved or
disproved.
> I've said that natural law theory represents the theoretical basis
> of international law, and by any meaning of the word "source" (that
> isn't the "very specific" one you haven't disclosed) that natural
> law theory can also said to be the *source* of international law (and
> we've had the Nuremberg example as an instance where
> natural law was brought out of its theoretical confines and applied
> directly). The problem with understanding natural law is that
> it is actuated usually only through positive law, so it doesn't
> appear outside of its theoretical form that easily.
I had understood "source" to refer to such things as customs,
agreements, treaties, and international organizations. He did in
referring to the UN Security Council and its functions give an example
of one of these "very specific" sources. How many more "specific
sources" does he need to provide? Does he need to refer to specific
treaties? Specific customs? How has be failed to meet this standard? It
almost seems like, now that he has addressed these things, the bar has
been raised on him again.
> > or addressing the issues I've brought up.
>
> You haven't brought up that many issues, Scott, unless you're
> alluding to something other than what you've said several
> times now
But why should he bring up other issues when he has been sticking to the
issue at hand? Confirm or refute the issues he has brought up with
evidence or with sound analysis. That is all that really needs to be
done.
> > You seem to be misrepresenting
> >the discussion and my claims.
>
> Well, any time you feel like that, you can try to make it clear,
> but so far you really haven't said that much. You clip out the
> bulk of the posts you are responding to and repeat this
> bit about the "sources being, etc." And now you've offered
> that "sources" has a "very specific meaning," which would seem
> to me to be germane to your claims, but you haven't said what
> it is.
I have not noticed him clipping out relevant content. Please give a
specific example of this. For example, I had checked out your previous
post
http://x29.deja.com/getdoc.xp?AN=616486805
prior to his response
http://x29.deja.com/getdoc.xp?AN=616523103
He snipped your comments about the relevance of Vattel's work and its
relevance, which you did not produce any evidence to show that this was
more influential in the formation and making of international law than
the factors that Scott mentioned. He also snipped out comments at the
bottom that are basically a reiteration of your belief that
international law has nothing to do with "belief", which he addressed in
responding to your previous paragraph. He certainly did not evade
dealing with any evidence showing that Vattel was more influential on
the formation of international law or that "natural law" constitutes a
kind of universal "absolute" in specific terms.
You need to, however, address the questions that have been put to you
concerning what "natural law" means in specific terms in ways that if
can be demonstrated to be evident without significant variation
cross-culturally and longitudinally.
> > Perhaps you should go read through the thread
> >again, and maybe offer a clear statement of your position and why you
hold it.
> >It may be that my claims are not contradicting it. Be specific, so
far you've
> >been rather vague and unclear, looking more like you want to pick a
fight than
> >really discuss an issue.
>
> I've been perfectly clear. The natural law theorists dealing with
> inter-national
> relations provided the superstructure of international law, and are
the
> source of international law. Custom, customary law, treaties,
conventions,
> etc. are all workable to the extent that they conform with the
principles
> of natural law, which call for reciprocity and comity, and recognize
the
> difference between good conduct and bad.
But that's the problem, isn't it? What one culture recognizes as
reciprocity, another does not. Likewise with "good" and "bad". The
principles of natural law themselves cannot be agreed to in any
meaningful sense beyond vague generalities allowing for a plethora of
different interpretations, many quite different in meaning and intent
from one another. That being said, customs, treaties, etc. which may or
may not be based on these things are still based on very different
things.
Elsewhere, you assert something to the effect (to paraphrase from
memory) that "natural law" is based upon rational structures present in
every human heart. But then you must define what is in fact "rational",
beyond just asserting logical consistency (which may be true for several
vastly different systems of thought), and by showing through empirical
evidence and not merely asserting that that "natural law" is universally
understood by individuals and by nations as a whole.
--
Quod si nihil cum potentiore juris humani relinqui
tur inopi, at ego ad Deos vindices humanea superbiae
confugiam - Livy, bk 9, ch. 1
Sent via Deja.com http://www.deja.com/
Before you buy.
Mike Curtis
<cay...@nyct.net> wrote:
>Mike Curtis wrote in message ...
>>"Martin McPhillips" <cay...@nyct.net> wrote:
>>
>>>>
>>>>He's pretty vague. Why just him. what's wrong with the others? Why are
>>>>you singling him out?
>>>
>>>I'm "singling him out" because his work is available on-line, and
>>>therefore anyone interested can refer to it. I haven't found on-line
>>>versions of the others yet.
>>
>>Then he just a pick of the moment so that you can make vague points.
>
>No, I've posted the link to The Law of Nations in good faith as
>a resource to the readers here. If you're not interested, then
>I'll just drop you off right here.
>
>>Yet he isn't the only philosopher or influence in this area.
>
>
>Who said he was?
He seems to be the only one your working with.
> But he's working with all the basic
>principles in the natural law tradition.
Actually, his view of what he thinks natural law is. First of all the
law is a system of "state-enforced rules by which relatively large
civil societies and political entities operate. This programmed social
functioning is backed up by the exercise of power by a poltically
soveriegn body.
What constitutes law among the behavioral codes by which groups or
individuals in society live has been defined by legal philosophers in
three different ways. Some say that the law is the command of a
sovereign power to obey a rule, with a penalty for transgressing it.
This view is called legal positivism and has been particularly
associated with the nineteenth-century English philosopher John
Ausitin.
On the other side are those who say that the law is the application
within a state or other community of rules that are derived from
universal principles of morality rooted in revealed religion or reason
or a kind of ethical communal sensibility. This view is associated
with Thomas Aquinas, in the Middle Ages, who articulated it in the
from of natural law theory, and with Lon Fuller and Ronald Dworkin,
among recent American legal philosophers.
In the 1960s the widely esteemed Oxford philosopher H. L. A. Hart
tried to find an intermediate position between these two opposing
definitions of law according to positivism and natural law. He argued
that there are 'rules of recognition' in which obligation of rule
conformity is brought about by 'social pressure' and customary social
behavior rather than by sovereign cammond and penalty." [Norman F.
Cantor, _Imagining the Law_, Harper Collins, 1997, pages 1-2.]
The above paragraph reminds me of Locke's "Letter on Toleration" but
as you can see this is all local philosophy and the end results would
be different for each society based on their culture. So each culture
or nation would have to agree on laws between them. This is what Scott
is speaking of when he comes to agreements, understandings and
treaties. Each party has to agree among themselves what aspects of
international law they can live with.
Mike Curtis
Mike Curtis
<Gard...@pitnet.net> wrote:
>
>Mike Curtis wrote:
>>
>> "Martin McPhillips" <cay...@nyct.net> wrote:
>>
>> >This is a work of political philosophy that
>> >deals with the nature of states and their relations to one another.
>> >It's no more "vague" than most works of its kind, then or now.
>>
>> This was a discussion concerning natural law. If you want a point to
>> be made by Vattel then quote it directly along with the proper URL so
>> those of us involved can check the context.
>
>Right on. We can do that.
>=======
>FROM Book I of the Law of Nations (http://www.constitution.org/vattel/vattel_pre.htm_)
>
>It is a settled point with writers on the natural law, that all men
>inherit from nature a perfect liberty and independence, of which they
>cannot be deprived without their own consent.
>
>[Jefferson echoes]...
From what? Where's the citation?
Mike Curtis
<cay...@nyct.net> wrote:
>Mike Curtis wrote in message ...
>>"Martin McPhillips" <cay...@nyct.net> wrote:
>>
>>>Mike Curtis wrote in message <3908a216...@news.sig.net>...
>>>>On Thu, 27 Apr 2000 15:50:53 -0400, "Martin McPhillips"
>>>><cay...@nyct.net> wrote:
>>>>
>>>>>Scott D. Erb wrote in message <39088819...@maine.edu>...
>>>>>>
>>>>>>
>>>>>>Martin McPhillips wrote:
>>>>>>
>>>>>>> Not really. You're attempting to separate current structures from
>>>>>>> their theoretical roots.
>>>>>>
>>>>>>The theoretical roots are subject to debate.
>>>>>
>>>>>Not really. There are borrowings from Roman law, apparently,
>>>>
>>>>Yes, but Roman law is not American law. In Roman law people can simply
>>>>be arrested while waiting for trial without charges. This is true
>>>>today in Europe. However the customs are different here in this
>>>>country.
>>>
>>>Yes, I'm sure.
>>
>>I'm not only sure but I'm positive. Seems you aren't able to deal in
>>specifics?
>
>
>You jumped into the middle of a paragraph about how there
>were influences from Roman law in international law with a
>non-sequitur (as far as I was concerned) about how Roman
>law is not American law, etc.
No. I showed you a difference in what is viewed as natural law or is
it a matter of natural law? Obviously under Roman or Justinian law
there is a difference between how human freedom is observed. So when
making agreements internationally one is going to run up against these
walls of difference. Most all of Europe is under Justinian law or
roman law to this day. They can agree among themselves which made the
EU possible. It took longer for England to come in because of
differences in there in common law. "The fundamental principles of
Roman alw in the Justinian code are absolutism and rationality.
Absolutism is based on the constitutional myth that developed in the
early Caesarean empire of the first century A. D. As the code itself
says: 'Whatever is approved by the sovereign has the force of law,
because by the *Lex Regia* [royal law], from whence his power is
derived, the people have delegated to him all their jurisdiction and
authority.'
Long ago legislative sovereignty resided in the Roman people; they
have irrevocably surrendered this authority to the emperor. His will
is now law. The law resides in his mouth, in his breast.
The emperor is the head of the Greek church; he holds divinely
constituted authority. So in the code religious sanction is added to
legislative and executive authority, 'for what is greater or more
sacred than the Imperial Majesty? Nothing in the world.'
Going along with this absolute authority by which the emperor dictates
the particulars of civil law, the law of the immediate society he
governs, is natural law, the judicial principles that reason perceives
as applicable to all peoples, and hence . . . constitutes the *Ius
Gentium*, the law of nations."
All this goes back to Cicero and Gaius when the Mediterranean world
was under Roman rule. So, "[in] the Justinian code, natual law is
universalized to the point that it 'is not peculiar to the human race,
but applies to all creatures which originate in the air, on the earth
and on the sea.'" [Norman F. Cantor, _Imagining the Law_,
HarperCollins, 1997, pages 32-33.]
Things are so much easier to generalize when those defining what is
natural are the ruling country or power.
Mike Curtis
Mike Curtis
<Gard...@pitnet.net> wrote:
>
>
>"Scott D. Erb" wrote:
>>
>> Martin McPhillips wrote:
>>
>> > >Current practice of international law does not rely on or require natural
>> > >law theory.
>> >
>> > Of course it does. The general principles behind treaties/conventions
>> > and customary law are found in the natural law theories of Vattel and
>> > others.
>>
>> Again, it is a very common argument that these are social constructs, and not
>> natural law, even if some philosophers believe they come from natural law. You
>> have not yet addressed that point.
>>
>> I suggest you deal with the argument
>
>Right on.
>
>The problem is that if you base customs
>entirely in socio-cultural constructs, then you really don't have a
>leg to stand on when trying to enforce international law.
They are called treaties. World courts have been set up to enforce
them.
[snip]
Mike Curtis
Mike Curtis
<Gard...@pitnet.net> wrote:
>"Scott D. Erb" wrote:
>>
>> Mike Curtis wrote:
>>
>> > >
>> > >I'm glad you have taken the opportunity to clarify (or correct) your
>> > >viewpoint, as the case may be.
>> >
>> > You need not add the "correc" my claim for my claim hasn't changed
>> > since I first asserted it.
>>
>> Sigh. He doesn't want to admit that, he wants to create the appearance that
>> somehow he made you change your statement.
>
>Erb and Curtis are prima facie liars. Here are the facts:
>
>Mike Curtis wrote:
>
>"my claim is that violations of the German law were not the only
>charges at Nuremberg or the sum total reasoning behind the indictments"
Which part of "were not the only" do you not understand?
>AND HE ALSO WROTE--
>
>"The Nazis violated German law period. That is what they were tried on
>in trials held by the allies and themselves."
This is pulled out of context of the overall discussion.
>These statements are the most direct contradictory statements that a
>logician could ever face.
I'm simply trying to have a discussion on Usenet. I'm only human. But
context is important.
Rest of the rant is snipped unread.
Mike curtis
Mike Curtis
<Gard...@pitnet.net> wrote:
>Mike Curtis wrote:
>>
>> On Tue, 25 Apr 2000 23:53:12 -0500, Rick Gardiner
>> <Gard...@pitnet.net> wrote:
>>
>> >Mike Curtis wrote:
>> >>
>> >> >And on that score you stand at odds with the founders, who believed
>> >> >that morals are part of the innate (i.e., natural) fabric of the human
>> >> >constitution. (See e.g., Thomas Jefferson to Thomas Law, posted again
>> >> >and again lately)
>> >>
>> >> So *I* may disagree with the founders. Big deal. Many people disagree
>> >> with the philosophy of the 18th-Century today. I do, in fact disagree
>> >> with the conception of innate morals that Jefferson thought there was
>> >> in his time.
>> >
>> >Right on. Fair enough. Thanks for your honesty. I happen to agree with
>> >the philosophy of the declaration of Ind.
>>
>> Which now you recognize was Reid, Hutcheson, Schaftesbury, Locke and
>> many others?
>
>From the get go I have been saying that the DOI was a restatement of
>many common European theologians and philosophers. Each one of the men
>you cite here were both theologians and philosophers. Hutcheson and
>Reid had Presbyterian roots,
And Hutcheson was a deist. Reid on on the opposite side from
Witherspoon while the latter was in England. They didn't agree. Later,
Witherspoon, for some reason, changed his attitudes and became more
liberal in his doctrines.
> Schaftesbury and Locke were products of
>Puritanism, although Schaftesbury and Locke became latitudinarians,
>god bless em.
Actually Locke was Socinian.
>Schaftesbury probably had much less direct influence on the philosophy
>of the DOI than did Locke,
He figured highly in Jefferson's Commonplace book. Much moreso than
Locke. So did Bolingbroke.
> and Locke's theories were little more than
>a recapitulation of Milton, the Vindiciae, the Dutch Declaration, etc.
You really never been able to make this case. Much of the evidence
presented has totally taken Milton out of the picture. This Dutch
business was supposed to be a book and now it is an article in a
rhetoric magazine. Seems to have had very little influence with
historians concentrating on the Declaration of Independence.
>I truly do appreciate your newfound openness to accepting a profound
>Scottish influence upon the founders. Most who want to play the
No you are not. I had to drag you kicking and screaming into that
school of philosophy while you fought for Locke. Shall we reprint the
discussions?
>"French liberalism" card run from this like the plague, because they
>know that the Scottish Enlightenment was fundamentally Calvinistic and
>natural law based (cf. Witherspoon).
>
>I don't think you quite understand who Reid was and what he was all
I was looking at what aspect influenced Jefferson to use the phrase
self-evident and what it meant to Jefferson and meant in the
Declaration. It doesn't mwean he accepted everything else Reid wrote.
It means that that aspect of Reid's thought was not only influential
with Jefferson but also with American society at that time.
[snip the old stuff I and others have dealt with already]
Mike Curtis
Scott D. Erb
Rick Gardiner wrote:
> Simple, Duns.
Duns? Is that an attempt to start with an insult, Rick?
> The claim that you have made is that "natural law is not
> a source for international law," and Mr. McPhillips has offered a very
> clear, concise, and compelling argument, in the words of Vattel, which
> show that natural law is not only A source for natural law, but THE source.
No, Rick, that certainly is not the case, as the thread proves. You're simply
dead wrong here.
>Are you not going to be satisfied until Mr. McPhillips is forced to
> make an Alisonian move by cutting and pasting the entire text of
> Vattel's Book II in this newsgroup??
Was your only purpose for this post to grandstand? You added nothing of value,
and in fact your restatement of what has happened is false.
cheers, scott
Scott D. Erb
Rick Gardiner wrote:
> "Scott D. Erb" wrote:
> >
> > so far you've
> > been rather vague and unclear, looking more like you want to pick a fight than
> > really discuss an issue.
>
> Not again, Erb. Please. This old maneuver is so childish.
The whole point of your post was to snip most of another post and then hurl an ad
hominem?
Scott D. Erb
Rick Gardiner wrote:
> >
> > Sigh. He doesn't want to admit that, he wants to create the appearance that
> > somehow he made you change your statement.
>
> Erb and Curtis are prima facie liars. Here are the facts:
Actually, Rick, your mean spirited insults and twisting of what others say
dishonestly makes you the "liar" of the group.
Luckily, you're being continually called on the carpet for it.
> Mike Curtis wrote:
>
> "my claim is that violations of the German law were not the only
> charges at Nuremberg or the sum total reasoning behind the indictments"
>
> AND HE ALSO WROTE--
>
> "The Nazis violated German law period. That is what they were tried on
> in trials held by the allies and themselves."
He wrote a lot more, Rick. Your dishonest tactic is to snippet little bits that
allow you to distort. That is why Mike and Jim and others post URLs to the debate
and have to repost long bits, to show how dishonest you are being. You then whine
about how they repost things they posted along ago, saying it violates
nettiquette. But how else can one counter someone whose tactics are as brazenly
immoral as yours?
> These statements are the most direct contradictory statements that a
> logician could ever face.
Not at all. Mike's explained his views in depth. You're just dishonestly
snipping bits out of context because you are not concerned with learning and
communicating but bolstering your ego by attacking those with whom you disagree.
Behave yourself and start posting honestly if you want to be taken seriously.
Jeff Sinclair
Gard...@pitnet.net wrote:
> Scott Erb wrote:
> >
> > Martin McPhillips wrote:
> >
readers."
> >
> > OK, I'll trust you. I just don't see how it applies to anything I
claimed.
> >
> > > It's an accessible on-line version of a standard classical
treatise on
> > > international law and relations. And it demonstrates quite
consistently
> > > where the principles of international law are drawn from.
> > >
> > > The work as a whole is remarkably internally consistent, as I have
> > > found it so far, and I recommend that interested readers puruse it
> > > at their leisure and comment thereupon, also at their leisure.
> > >
> > > The url, again, which is to an on-line version of Vattel's
> > > The Law of Nations--
> > >
> > > http://www.constitution.org/vattel/vattel.htm
> >
> > I certainly would recommend reading it, as well as Grotius. I still
prefer
> > Kant,
>
> Kant, on the Law of Nations??? That must have been a lecture I missed
> while earning my degree in philosophy.
Nice try to distort. Not. The context shows that he is speaking about
Kant on natural law. Your degree in philosophy has nothing to do with
anything, because at question has not been your knowledge but your
deliberate distortion of history, religion, and philosophy in order to
support the agenda of your accomodationist and non-preferentialist
buddies.
> > but I'm really not certain how this relates to any claims I made.
>
> Simple, Duns. The claim that you have made is that "natural law is not
> a source for international law," and Mr. McPhillips has offered a very
> clear, concise, and compelling argument, in the words of Vattel, which
> show that natural law is not only A source for natural law, but THE
source.
Back at the personal insult game, eh Gardiner? Mr. McPhillips has shown
that "natural law" is _a_ source of international law, but he has by no
means shown that it is THE source. What has been shown in Vattel in
examining some of the language there are very general and vague
statements concerning "reciprocity" which is itself open to
interpretation, largely based upon differing definitions of what this
means to different cultures. It has also been shown that where the
rubber hits the road, especially as international law these days,
"natural law" even where different nations _do_ interpret many aspects
of it similarly, has taken a back seat in practice to the factors that
Scott mentioned, not to mention taking a back seat to pragmatism.
> Are you not going to be satisfied until Mr. McPhillips is forced to
> make an Alisonian move by cutting and pasting the entire text of
> Vattel's Book II in this newsgroup??
All that has been asked for are some specific examples, especially when
one considers the length of Vattels work. Doing the Gardiner "throw
titles or URLs to the Library of Congress at them as 'proof'" two-step
does not constitute good argumentation in any discipline.
Jeff Sinclair
> >
> > >This is a work of political philosophy that
> > >deals with the nature of states and their relations to one another.
> > >It's no more "vague" than most works of its kind, then or now.
> >
> > This was a discussion concerning natural law. If you want a point to
> > be made by Vattel then quote it directly along with the proper URL
so
> > those of us involved can check the context.
>
> Right on. We can do that.
> =======
> FROM Book I of the Law of Nations
(http://www.constitution.org/vattel/vattel_pre.htm_)
>
> It is a settled point with writers on the natural law, that all men
> inherit from nature a perfect liberty and independence, of which they
> cannot be deprived without their own consent.
Big deal. Writers on natural law may so assert, and it is all very nice
philosophical language and nice ideals, but when it comes down to
empirically investigating whether or not humans actually do "inherit
from nature a perfect liberty and independence", the empirical results
say differently. People often act in ways that they do not want to act
and in ways that they have no control over due to such things as genetic
makeup and early childhood experience. People are dependent and
independent in various degrees and in various ways by nature. People are
deprived all the time of their freedom both with their consent and
without their consent.
Vattel's ideas, and the ideas of natural law writers are nice ideas, but
as a _descriptive_ view of reality as opposed to a subjunctive wish
that reality might be a certain way, it does not stand up to the
evidence, and you know it. I do not disagree with Vattel's ideas by and
large after reading through them, just as I do not agree with
Jefferson's ideas. But wanting nations and individuals to act this way
is not the same thing as their being "natural", especially when the
evidence shows that they are not.
> [Jefferson echoes]...
>
> § 5. To what laws nations are subject.
>
> As men are subject to the laws of nature, - and as their union in
> civil society cannot have exempted them from the obligation to observe
> those laws, since by that union they do not cease to be men, - the
> entire nation, whose common will is but the result of the united wills
> of the citizens, remains subject to the laws of nature, and is bound
> to respect them in all her proceedings. And since right arises from
> obligation, as we have just observed (§3), the nation possesses also
> the same rights which nature has conferred upon men in order to enable
> them to perform their duties
>
> § 6. In what the law of nations originally consists.
>
> We must therefore apply to nations the rules of the law of nature, in
> order to discover what their obligations are, and what their rights:
> consequently, the law of Nations is originally no other than the law
> of Nature applied to Nations...
>
> § 7. Definition of the necessary law of nations.
>
> We call that the Necessary Law of Nations which consists in the
> application of the law of nature to Nations. It is Necessary because
> nations are absolutely bound to observe it. This law contains the
> precepts prescribed by the law of nature to states, on whom that law
> is not less obligatory than on individuals, since states are composed
> of men, their resolutions are taken by men, and the law of nature is
> binding on all men, under whatever relation they act. This is the law
> which Grotius, and those who follow him, call the Internal law of
> Nations, on account of its being obligatory on nations in point of
> conscience. Several writers term it the Natural law of Nations.
Well and fine (also very general and non-specific). Jefferson's ideas
are wonderful, and I could hardly agree with them more. But from whence
do they and my positive opinions of them arise? From the fact that these
are developments of Western philosophical thinking, shaped to a large
extent by Enlightenment thinking, and that the cultural ethos of this
country has been shaped in large part by this tradition. Other cultural
traditions, however, as has been asserted, may emphasize other things as
"natural", such as one's obligation to the group at the expense of the
individual and his or her freedom (to the point, for example, that the
"reciprocity" alluded to by Vattel does not exist in that the individual
get little or nothing in return). This idea of what is "natural" has
been found, for example, in some Asian and African cultures, to whom the
idea of "the individual" does not largely exist, much less one engaged
in this form of social contract making.