tag:blogger.com,1999:blog-6001813637971400489.post278718506801439221..comments2024-02-27T11:10:41.924+01:00Comments on Who Owns You?: The Perils of Pure PositivismDavidhttp://www.blogger.com/profile/05018243335902307150noreply@blogger.comBlogger8125tag:blogger.com,1999:blog-6001813637971400489.post-14276712569290584742009-12-12T08:55:04.877+01:002009-12-12T08:55:04.877+01:00yet another example, in this Science Friday, when ...yet another example, in this Science Friday, when Kevin Noonan argues that based on past precedent, "isolated" natural products are "perfectly patentable"... uncritically embracing bad law because it's "the law" (it also benefits him and his clients, by the way): http://www.sciencefriday.com/program/archives/200912112Davidhttps://www.blogger.com/profile/05018243335902307150noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-48966681595198000722009-12-10T16:50:41.659+01:002009-12-10T16:50:41.659+01:00Thanks, Rosja. I'd say I fall firmly in the m...Thanks, Rosja. I'd say I fall firmly in the middle, and I don't really rely on any extra metaphysics. To be clear, there are plenty of positive laws that I would say are grounded in pragmatic or utilitarian concerns, and thus just (with a small J), as long as they do not conflict with any existing natural law (see Reinach for the "grounding" of which I speak... his Apriori Foundations of the Civil Law explains it nicely and is available here: http://blog.mises.org/archives/011041.asp ). There are, however, according to Reinach, myself, and others similarly bent, some laws that are grounded in truths that can be known a a priori. Reinach considers contracts, I discuss real property vs. intellectual property. I'd argue that individual autonomy is similarly "grounded," without recourse to any extra metaphysical steps. Read the Reinach, my own books on the subject (Ontology of Cyberspace, 2000, and Who Owns You, 2009) and let's discuss it some more. Thanks for your comments and input!Davidhttps://www.blogger.com/profile/05018243335902307150noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-14762524917655556022009-12-10T15:52:37.504+01:002009-12-10T15:52:37.504+01:00Thanks David. I'll have to read up on your qui...Thanks David. I'll have to read up on your quirky naturalism then. <br /><br />For now, if I may bug you some more, I would say that it sounds like there is some excess metaphysics in your claim. All you really need is that the attribution of possession 'comes naturally to us', not that there is a metaphysical reality underpinning it. That latter idea is an attempt to offer the philosophical kind of justification (by metaphysical speculation) that Wittgenstein rightly criticised. <br /><br />The advantage of, among others, JL Austin's views (the other Austin) on freedom and excuses and HLA Hart's early paper on ascription of responsibility and rights is, in my opinion, that it allows for the possibility that the law is *sometimes* not dictated by morality (i.e. when nothing comes naturally), which is different from saying that it never is. Just as the judges ruling is constrained, but not necessarily determined, by the evidence, the law and jurisprudence. Laws can be right or wrong (or neither) without there having to be the One True Law. <br /><br />In this sense, I believe that the dichotomy between positivism (no constraint) and naturalism (total constraint) is a false one. Needless to say, I'll have to read your work to substantiate this prima facie objection.Anonymoushttps://www.blogger.com/profile/06207591597045476795noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-58459667195997724852009-12-09T19:18:00.453+01:002009-12-09T19:18:00.453+01:00and let's not confuse the grounding of natural...and let's not confuse the grounding of natural law with laws of nature, which are akin, but not identical.Davidhttps://www.blogger.com/profile/05018243335902307150noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-34997408195683876762009-12-09T19:17:22.209+01:002009-12-09T19:17:22.209+01:00well, Lex, it's the "mandating" part...well, Lex, it's the "mandating" part that I would oppose, not the content of each, because I believe that the fundamental natural law is individual autonomy.Davidhttps://www.blogger.com/profile/05018243335902307150noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-39973215294367763532009-12-09T17:52:16.488+01:002009-12-09T17:52:16.488+01:00In essence, you argue against the legality of say,...In essence, you argue against the legality of say, mandating the teaching of creationism, or mandating free breast exams, since these also would be contrary to natural law, to make a slight pun. So many questions coming to a head these days! It's rough, keeping morality out of science any more, and religion away from the state.<br /><br />Thanks for keeping up the good fight!Lexhttps://www.blogger.com/profile/17599750504963758602noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-18322120392098661482009-12-09T17:19:23.803+01:002009-12-09T17:19:23.803+01:00Rosja, it's a step forward from "pure&quo...Rosja, it's a step forward from "pure" positivism (as in Bentham, Hart, Austin) but a step backward from classical liberalism's natural law theory, which grounds the justice of an enactment in some natural condition of the universe. I have elucidated my quirky naturalism before, in previous posts here, and in my book, as well as my lecture on YouTube on the ethics of IP, and elsewhere. Essentially, for laws to be just, they must be grounded in something beyong their mere enactment. In the case of real property, I argue the justice of laws upholding rights to property is grounded in the brute facts of prior possession. In the case of genes, I argue that the existence of the genome, as a "commons by necessity" is grounded in the unencloseability of the genome, like other similar commons (laws of nature, for instance). I thus argue that attempts to enclose such commons are <i>prima facie</i> unjust. Positivists would argue that, by virtue of rules that enable their enclosure (IP law), things like gene patents are not unjust. I obviously disagree.Davidhttps://www.blogger.com/profile/05018243335902307150noreply@blogger.comtag:blogger.com,1999:blog-6001813637971400489.post-18857319055246723202009-12-09T15:07:40.426+01:002009-12-09T15:07:40.426+01:00Hi David,
I much agree with the spirit and the p...Hi David, <br /><br />I much agree with the spirit and the point of your argument. I am not an expert in these issues, but I do have a question/comment. <br /><br />Although I agree with the criticism of legal positivism, I do not quite see what alternative you are proposing. The (positivist) statement that laws are rules made by people seems undeniable. It does not imply that people do so at random. As I see it, without a prohibition against, e.g., assaulting someone there is still, but only, indignation and revulsion. <br /><br />Of course one can ask whether one accepts the law(s) as binding, i.e., committing to it or not is a moral decision. <br /><br />I do not accept positivism as such, but I do think that the critique from positivist and Oxford philosophers to realism and descriptivism was a move forward. <br /><br />RosjaAnonymoushttps://www.blogger.com/profile/06207591597045476795noreply@blogger.com