dk

"Legal positivism is the name given to a theory of law, developed by utilitarian jurists like Jeremy Bentham and John Austin, and most famously developed in the 20th century by the Austrian Hans Kelsen and the Englishman Herbert Hart. Legal positivists aimed to develop a theory of what constituted a legal system which was value-free--that is, independent of moral content and amenable to empirical analysis. " --- Legal Positivism

Logical Positivism can be applied to any field of study. When applied to law it becomes Legal Positivism. Legal positivism provides an empirical basis for law, that is empirically "of the law for the law and by the law" i.e. recognized by governmental authority. Contrasted with Natural Law... : a body of law or a specific principle of law that is held to be derived from nature and binding upon human society in the absence of or in addition to positive law
Note: While natural law, based on a notion of timeless order, does not receive as much credence as it did formerly, it was an important influence on the enumeration of natural rights by Thomas Jefferson and others. -
Legal Dictionary, FindLaw

If you said Natural Law was buried in the 1950s, we'd have something to argue about, but this is pretty cut and dry. I do agree Positive Law has come over increasing scrutiny from academic circles, but that's what happens to the status quo, not buried relics.

Alonzo Fyfe

Thank you. My mistake. I was confusing "legal positivism" with "legal realism."

Yet, I made no mistake about the philosophical view of Logical Positivism. It simply is not accepted in academic philosophy these days. It was proved to fail its own test of meaning. If there is a defense of legal positivism to be had, it cannot depend on logical positivism.

Your original statement was that, the golden rule gives secular philosophers (positivists) fits.

Against this, I still hold that there is no way to equate "secular philosophers" with "positivists". "Secular philosophers" are simply "philosophers whose theories do not depend on the existence of a God." (Note: A secular philosopher can still believe that a God exists, but creates philosophical arguments that do not depend on the existence of a God -- and therefore can be accepted by somebody who does not believe in that a God exists. Mathematical proofs are 'secular' in this sense.)

If the claim you meant to make was that the golden rule gives secular philosophers fits, then I do not think that is true because 'secular philosopher' is such a broad term. It may give some of them fits, but not all of them.

I still hold that if your claim is that the golden rule gives philosophical positivists (a.k.a. logical positivists) fits, then it would be hard to determine this because logical positivists do not exist any more.

If your claim is that the golden rule gives legal postivists fits, then this may or may not be true. Though I consider myself a 'secular philosopher', I do not think that legal positivism holds up to scrutiny. Here, again, I will admit my previous error. Legal Positivism is not dead.

Note: legal positivism does not depend on logical positivism in any way. To begin with, legal positivism began nearly a century before logical positivism became popular. Legal positivism only requires a recognized distinction between what a law is and what a law ought to be. It then sets forth to answer the question of what the law is, recognizing the possibility that we could discover it to be unjust.

Legal positivism holds that there is a distinction between what the law is and what the law ought to be. In other words, it argues that there can be such a thing as an "unjust law". Natural law theory, in contrast, denies the possibility of unjust law. In the words of Martin Luther King, "an unjust law is no law at all." Legal positivists would reply that, "Jim Crow laws may have been unjust, but it is simple nonsense to say that they were not laws. We need a concept of law that makes sense of the concept of 'unjust laws'."

Back to your original statement. If you meant to say that the golden rule gives [legal positivists] fits, then I am at a loss to understand why this is the case.

Farren

Buddhism and Taoism teach something like the golden rule, but they don't teach it as a rule, because neither system of thought is rule or commandment based.

What both attempt to teach is the attainment of a state where you are in a healthy and harmonious relationship with yourself first, ie learn to love yourself (this precondition precludes machochism translating to sadism)

Since the meditations of both are focused on experiencing egolessness, they encourage you to be aware of your indivisible oneness with life around you and extend that harmony you find in yourself outwards by acting as a harmonious part of the whole.

I think in the buddhist/taoist form, the golden rule is superbly executed.

dk

Legal positivism is mutually exclusive from all theoretical musings, therefore contingent only upon practical knowledge and law. Marx and Hegel melded the Kant’s theoretical and practical divisions with dialectic materialism, and dialectic idealism. Unless you plan to turn existential or Nietzschean on me theirs nothing else on the table to discuss. The Supreme Court blessed Jim Crow Laws (forced segregation) in Plessy v. Ferguson (1896) with the phrase “Equal but Separate”. They did so in the absence of positive knowledge to the contrary. In the 1990s the US was in the midst of a severe depression, opportunistic carpetbaggers had hijacked the Reconstruction of the South, and the North’s military occupation of the South presented a great evil in and of itself. In the absence of positive evidence a legal positivist could quite effectively argue that Jim Crow Laws were justified in 1900, as the lesser of two evils under utilitarian principles. As you so aptly commented early, absent a compelling reason (positive knowledge) the law stands, and stood until Brown (1954) when sociology presented the practical knowledge to overturn Plessy. On the other hand there’s a great tradition of Natural Law that despised the Jim Crow Laws, its based on the principle of human equality and intrinsic dignity. I don’t know if you’ve read the Supreme Courts opinions in Lawrence (sodomy 2003), Casey (abortion 1992), Hardwick (sodomy 1986) and Roe (abortion 1972) but the Supreme Court craps all over itself with contradictions. Read Scalia’s descending opinion in Lawrence on www.FindLaw.com. I’ll grant you academia has been out to lunch since 1950 for the last 50 years. But lets not forget some have recently started to retrace their steps from Plato and Aristotle. Still many in academia remain committed to the philosophical schemes that led to World Wars of the 20th Century and the fall of Command Style Communism.