Natual Law and Positivism

Deleted User wrote: »

I know this may appear a legal question but it is, in fact, a philosophical one.

Where do people stand on the idea of where laws come from?

Are they man made constructs or are we simply putting action to divine law?

Most specifically:

If law is man made, and if we accept that once a law is considered valid by the country which established it, how do we (in the mould of HLA Hart) square the legality of the laws of Nazi Germany?

PLEASE NOTE: I am in no way starting a Nazi discussion, it is just that natural law theory has only really made a resurgence in western europe since WWII and the Nuremburg trials were the reason.

Laws come from our innate morality which in turn comes from our evolution as a social species. Basically if we did not have morality it would be more difficult for us to co-operate and our advanced level of co-operation is what sets us apart from other species and gives us an evolutionary advantage by increasing our chances of survival.

Deleted User wrote: »

Define please.

For an example, look to the Prisoner's Dilemma. At first glance, it appears that it implies an advantage to those who stab everyone in the back. However, when the game is repeated indefinitely, it makes more sense for the players to co-operate because the threat of tit-for-tat reprisal becomes a factor. In competitions, the most successful entries usually prove to be:
-Nice (do not betray if you have not been betrayed)
-Retaliatory (if you have been betrayed, retaliate until the opponent relents)
-Forgiving (once the opponent relents, revert to co-operation)
-Non-Envious (do not worry about whether your opponent is scoring better than you are).

There are of course variables to consider. In an environment where all opponents are unscrupulous betrayers who always defect, an entry with the above qualities scores relatively poorly. However, even a few opponents that share the above qualities will gain a huge advantage through the increased score from both co-operating as opposed to both betraying.

Deleted User wrote: »

Define please.

Innate morality is an instinctive sense of what it right and wrong. It is subjective and is influenced by societal norms, which in turn are ever evolving. It evolved due to the competitive advantage that high level co-operation provides, for which a sense of fairness is a prerequisite.

This video might provide a little insight to how our morality developed.

Ape Genius from PBS Nova
A PBS Nova presentation on the growing cultural intelligence of the greater apes.

Deleted User wrote: »

I am actually quite well versed in game theory and your analysis of the Prisoner's Dilemma has nothing to do with inate morality. What you describe is an equilibrium, reached through infinite repetition, that is based on an unexploitable long-term strategy to gain the greatest benefit for the individual.

There is nothing innately moral about it. If anything it is totally amoral. It is a mathematical concept which determines optimal strategic performance.


Regardless this is off topic.

I don't think it's off topic at all. Look at it in another way. If the best way to get ahead was to be Nice, Retaliatory, Forgiving and Non-Envious, then evolution would favour species that work together for mutual benefit instead of bickering with each other and allowing other species to take advantage of their lack of co-operation. This is why predators always target the animal that strays too far from the herd - they're easier targets than a large group who are close enough together to gang up on the predator. Sure, each member of the herd would reproduce more if his/her sexual competition were eliminated, but if they did not protect each other they would get picked off one by one and the entire species would become extinct. So to advance your own selfish ends, it is required to evolve a certain level of innate tendency towards cooperation (AKA morality).

It sounds like a contradiction, but it works. Humanity's greatest invention was not fire or the wheel. It was language, so that one person can share what they've learned with others. If the caveman that invented fire had never shown anyone else how to do it, where would we be today? Humanity has gotten as far as it has because we co-operate. And for people to co-operate, they must trust each other. And for people to trust each other, they must have shared values. If a person's moral code included 'I kill people who have never harmed me', would you be inclined to co-operate with this person?

The Prisoner's Dilemma illustrates that co-operation (even to a limted degree) works better than screwing people over, and so morality has evolved through survival of the fittest. So really, certain laws that get enacted are 'divine law' because they are logically the best for everyone.

Deleted User wrote: »

Secondly, morality as cooperation to keep our species as a whole strong is a very contractarian approach. If the greatest benefit to us as a species in terms of survival is to kill off the weakest members of our society so as to keep our gene pool strong then would that be moral or immoral?

Firstly, instinctive killing off of any member of one's own group is counter to a high level of co-operation. It conflicts with the parents instinct to protect their young at all costs. It will lead to a situation where either pre-emptive or reciprocal violence is common place thus destroying the trust necessary for high levels of co-operation. So killing off the weakest in the pack is incompatible with high levels of co-operation. Either the evolution of a species takes one route or the other it can't do both. It would appear that the killing of weaker members of one's own species is in fact common place in the animal kingdom and therefore a likely trait to evolve, in comparison high levels of co-operation are much rarer. But judging by the success of homo sapiens at propagating it is much more beneficial trait.

Secondly evolution is an unguided process. It does not look at a situation and try to work out the best way to approach it. Tiny almost insignificant changes occur constantly over massive time scales. If any of those changes are beneficial to survival or reproduction they will propagate, conversely if they have a negative impact they will become extinct. Looking at any attribute of a species including morality from a top down perspective is completely inverse, for everything evolved from the bottom up.

Your moral sense is guided by instinct just as is mine. It is what allows me to place trust in you to co-operate on a shared objective which we would be unable or less efficient and effective at accomplishing on our own. If we did not trust each other we would not be able to co-operate and we would be at a disadvantage to any other competing group who did. The level at which human co-operation takes place is unparalleled in the animal kingdom suggesting that it is an extremely rare path for evolution to take.

Thirdly, we can't take our morality and apply it to other species (top down) for it is a trait of our species an none other. Morality evolved as part of our psychology and has proven itself to be extremely beneficial from a purely Darwinian perspective and as such is worth following.

To answer your direct question, in line with how high level co-operation derives from trust which is why we have morality/ethics or more simply a sense fairness and killing another's offspring would break the trust resulting in a breakdown in high level co-operation, yes it is immoral!

Deleted User wrote: »

Wonderful post Sink.

If only it had something to do with law.

It has everything to do with law. Law comes from morality/ethics, it is simply giving it an agreed structure we collectively apply. If you are look for some objective moral truth provided from above in the form of divine laws then i'm sorry it doesn't exist.

Deleted User wrote: »

Is that where law comes from?

OK, well then if a law does not come from there is it a valid law?

Morality was initially and still is in many cases, only applied within one's own group. Laws which go against a universal sense of morality (i.e. a moral value placed upon every human on the planet) are to the benefit of individual groups at the expense of others. Discrimination against one group for the benefit of another is in steady decline and has been since the earliest human societies. Peter Singer called this 'the expanding circle'. Early homo sapiens only applied moral worth to their extended family unit, as cooperation grew between different groups they extended moral worth to their new partners. The circle has continued to expand as cooperation has grown between larger and larger groups of people. It is driven by enlightened self interest, the slow realisation that cooperation between larger and larger groups leads to greater mutual rewards.

For a better description read Singers own words.
http://www.utilitarian.net/singer/by/199704--.htm

Also worth a look is this lecture given by Steven Pinker on the decline of violence in human society in which he talks about the expanding circle.
http://www.youtube.com/watch?v=ramBFRt1Uzk&feature=channel_page

Deleted User wrote: »

We don't all agree on every law and our laws ASSUME people are not going to follow them so clearly they do not come from any common sense of right and wrong.

I don't agree. Morality is subjective, although it is a natural and instinctive sense it is informed by one's culture and the beliefs therein. It is also informed by knowledge and understanding of other social groups or lack thereof. Just because different people come to different conclusions does not mean they were not informed by a common sense. Similar to the way we both share a common sense of smell, but while the smell of fried mushrooms makes me gag you might find the aroma appetising. Obviously it doesn't work exactly the same fashion, but you get my point.

Deleted User wrote: »

Also, if it is a shared and common sense of morality/ethics then why do we need them if they are so commonly shared?

I'm assuming you mean to ask why do we need laws. Simply because morality is subjective and as such not everyone will agree. Also the fact that there is in addition, an instinct to be opportunistic. If one thinks they can get away with something without the negative consequence of a loss in trust and the resulting withdrawl of cooperation or reprisals then more often than not they will do so, even though their own moral sense is telling them it is wrong. After all the moral sense originated only as method to maintain mutual trust and ensure continued cooperation. If a loss of trust and cooperation can be avoided there is no direct benefit to being moral and so our moral sense can be overridden if the opportunity or need arises.

Deleted User wrote: »

Ireland's primary source of law, Bunreacht Na hEireann, acknowledges the Christian God. If law comes from this shared sense of morality then surely our most basic law giving documents acknowledgment of God means that we all share the basic belief in a God.

A common moral sense does not mean homogeneity of personal morals. Just as a common sense of hearing does not equate to a common taste in music.

Deleted User wrote: »

Ireland's primary source of law, Bunreacht Na hEireann, acknowledges the Christian God. If law comes from this shared sense of morality then surely our most basic law giving documents acknowledgment of God means that we all share the basic belief in a God.

That was written by a Catholic madman who was the closest thing Ireland ever had to a home-grown despot. Regardless, even though it acknowledges a god, the laws therein do not come from that god, but from man. At no point does it say "and god said, and so we do".

Deleted User wrote: »

I am sorry but this is so so so wrong.

The Prisoner's Dilemma does not allow for co-operation. Where it does it alters the nature of the game. The dilemma, as posited, states that the prisoners are in seperate rooms with no knowledge of each other. Where this is done in a finite and defined number of instances the greatest potential benefit is achieved by always screwing the other person. Where there is an undefined number of instances then the greatest result is gained by a tit-for-tat strategy. Where it is a once off the great potential return is gained by always screwing them over. This is not a disagreement of opinion. What I am saying is provable mathematical fact and what you are saying is nonsense.

The part in bold is flawed and I'll give you an example. There are 4 players playing the iterated Prisoner's Dilemma (and no, I'm not suggesting that they all play at once since the Prisoner's Dilemma only accomodates two players at a time): A, B, C and D. Players A and B follow the 'always betray/defect' strategy. Players C and D follow the 'only betray if you were betrayed in the last iteration' strategy. They each play each other player in a league style - A against B, C against D, A against C, B against D, A against D and B against C. Each game consists of 10 iterations.

For those that don't know the rules of the Prisoner's Dilemma, here's the Wikipedia explanation:

Two suspects are arrested by the police. The police have insufficient evidence for a conviction, and, having separated both prisoners, visit each of them to offer the same deal. If one testifies (defects) for the prosecution against the other and the other remains silent, the betrayer goes free and the silent accomplice receives the full 10-year sentence. If both remain silent, both prisoners are sentenced to only six months in jail for a minor charge. If each betrays the other, each receives a five-year sentence. Each prisoner must choose to betray the other or to remain silent. Each one is assured that the other would not know about the betrayal before the end of the investigation. How should the prisoners act?

What the Iterated Prisoner's Dilemma means is that the game is repeated for a certain number of iterations, so although neither player knows what their opponent will do in a given iteration, each player knows what the other player did last time.

When Player A plays Player B, each betrays the other all ten times, making them serve a total of 50 years each. When Player C plays Player D, they co-operate all 10 times, making them serve 5 years each. When a betray player plays against a tit-for-tat player, the tit-for-tat player gets the full 10 years and the betray player gets 0 in the first iteration, but they betray each other for the other nine iterations, giving the betray player 45 years and the tit-for-tat player 55 years.

At the end, when all games have been played, they tally their totals. Player A served 140 years, Player B served 140 years, Player C served 115 years, and Player D served 115 years. Ergo, the co-operators fared better. Your analysis that the best strategy is to betray in a finite amount of iterations is flawed since it ignores the possibility that the opponent won't betray first. It assumes that the opponent is unscrupulous.

Usually, you'd be right in saying that 'always betray' always wins against 'don't betray unless you've been betrayed(tit-for-tat)', since the tit-for-tat player gets screwed in the first iteration and they're equal in all subsequent iterations. This could be seen as confirmation of the old saying 'nice guys finish last'. However, when you consider that the world is comprised of many varieties of personalities, you realise that when all of these personalities interact with each other, the co-operators outperform the loners.

Anyway, this is a very long-winded way of saying that 'the basic laws' (like those against murder, etc) have arisen because of survival of the fittest: those who follow a certain minimum standard of morality thrive better than those who ignore social expectation.

Deleted User wrote: »

I usually try and avoid replying to nonsense.

I take it that that's what I can expect?