Advanced Worldview Analysis - Lesson 20

Dr. Ronald Nash

Advanced Worldview Analysis

th710-20

Legal Positivism

Lesson Transcript

[00:00:03] What we have here is statism. The state is the one who has to give us happiness. And this combination of statism and utilitarianism. I would also read you from Rawls. Yes. I need to describe this is again, this is not his thesis, but how he describes the current state of situations. At the time he he writes this book as society is correctly order when its institutions maximize the net or gross equilibrium of satisfaction. The principle of election for an association of men is interpreted as the extension of the principle of election of one single men. Social justice is a principle of rational prudence. Apply to collective conception of the welfare of the group. That was not clear. Let's just. Utilitarianism started as addressing the individual. The process that has moved from the early utilitarianism to the kind of utilitarianism that John Rawls is describing and in some sense advocating is the rule for what is good and in utilitarianism, good is equal to what brings happiness to more people, roughly speaking. And that's why utilitarianism has good impact even among Christians. You will be surprised how many Christians are utilitarian. I am surprised, but this was still in an environment of a lot of freedom and now this has been moved to the level of state in which is the state, the one that is in charge of making the decisions that will bring the larger amount of happiness to the larger amount of people. Again, what is the logical or ethical move to ascribe to the state That power has not been proved. But to me, it's a matter of faith. It comes out from the worldview of people that they believe that men are finite, but that if they get together in the state and they get the power of the state, men can be near potent, omniscient and almost omnipresent.

[00:02:38] What is one of the problems with this? I have pointed to some of the ethical problems. There is a practical problem, and that has to do at this level that this the statement of this belief is false, man. No matter how many men you put together, how many hands you put together, how many labs, how many universities, how many taxes, how many money man is not. And we'll never be omniscient, omnipotent, and even in prison is kind of a joke at this point. But at least at this point, we are concerned about this and omniscient and omnipotent, which is one of the necessary premises, or it is necessary for utilitarianism to be true. To apply that is this. That's why I called these approaches to look consequentialist. Okay, We do this cause and effect. We get that. The problem is that and that is it's right. What Dr. McKenzie point out about this being originally in a framework of justice, that framework has been lost for what I will talk later about natural law. But when you are left with simple cause and effect, you are left to your own ability to foresee the future. What consequences? And this effect is consequences. What consequences will this action bring? And to take this approach assumes certain level of omniscience or some level of wide knowledge and some level of white power that you can control consequences. Let me go back to the question of abortion. The whole controversy of abortion takes place originally in the context of the sexual revolution in the 1960s. Everything goes especially in sexual matters. But there is one little problem, a big problem that sexual activity by its nature brings conception, and that is a conception of a human being. Therefore, free love has there a constraint.

[00:05:01] It cannot be that free. But we are entitled to this unlimited happiness. What do we do to solve that since happiness, this happiness for more people? Of course, the baby in the womb is not considered a person. Since people is entitled to this happiness and there is a consequence that is of certain behavior that is interrupting the happiness of people. We get rid of the consequence. Of course, women who have the misfortune of aborting have psychological problems after they have done that. So we have another consequence. Well, let the state give counseling to them or someone get counseling. Let's eliminate that consequence. Promiscuity also brings sexually transmitted diseases. Is that the proper term? Yeah, like AIDS and things like that. Well, let the state have a campaign promoting safe sex. Let's get rid of the consequence. But there are so many other consequences that we cannot control. And what we do in this kind of approach that forgets about a framework of justice is just going after the consequences. The myth of human omniscience through the state is refuted day by day and omnipotence. But in the process, the state has to grow and grow and grow to be able to tackle all this consequences. And I have just taken one and one example of an assortment of human behaviors that can come to our consideration. Well, this is statism and consequentially some. The problem with consequential ism, the more the most famous or the most prevalent view consequentialist view of law is utilitarianism. There is one more problem with utilitarianism, a logical problem we talk about back here, about what is and what ought to be. When we say that one ought to respect the human life of his neighbor. One is making a prescriptive statement.

[00:07:27] When we describe what is, we use a descriptive cryptic statement to the question. What ought to be is. Let me put it this way. If you ask a utilitarian when I say one ought not to take the life of another person, the utilitarian says what you are really saying is that it is against the happiness of the community, or in this case the person who is killed. It is against his happiness to take away life of a human being. So the ought to be is translated into a descriptive statement and consequential ism. All forms of consequential ism. What is good? Good is what brings more happiness. Good is what God says. Good is good is what certain society decides in a certain context that it is good. All these our translating the statements of ought to be to the statements of what is to be. And this is called. These has been identified by moral philosophers as the naturalistic fallacy. C.S. Lewis is wonderful in the development of this check. The introduction to the problem of Pain. And definitely the abolition of man. The Abolition of Man is my favorite book by C.S. Lewis. It's it's just superb. And he develops this question wonderfully that from the statement, This brings happiness, more happiness to a larger number of people. You cannot get an art to from a descriptive statement, descriptive truth of what is this brings happiness. You cannot logically jump to this ought to be the case. And it's called the naturalistic Fallacy, which connects us with our next topic, which is legal positivism. Legal positivism gave me my degree in law. I wrote my dissertation for the law degree on Legal positivism. Of course you know that, I assume. Let's see. Yeah, I assume that you understand that I am not a legal positivist.

[00:10:06] I am very far from legal positivism. Neo positivism has a number of theses that make the core of what stands for legal positivism. Not all schools of legal positivism agree in what is essential for a school or an approach to lead to be a legal positivism. But let's say in rough terms in a broad generalization. Most legal positivist in the past the classical legal positivism agreed in what it's called the subjectivist thesis. I mean the principle of positive lot. Let's call this a formal. I hope I am not butchering terminology. The Subjectivist thesis for legal positivism says that statements of this nature prescriptive statements are not object, are not rational, are always subjective in the sense that do not come from reason, but from subjective feelings. Interests constrains custom, you name it, and therefore there is no objective ought to be that when people or societies have said one ought not to kill his neighbor, the only thing they are expressing is their desire for self-preservation. Therefore, instinctively, not rationally, but instinctively they are making this statement. But that statement has no rationality whatsoever. Therefore, when a community decides what for a community to be rule, because even though these prescriptive statements are subjective, we still need them. You cannot live without prescriptive statements. Let me elaborate on that. I know this when I was a lawyer, my boss would tell me when we were drafting a contract, write it in a way that it will help as a manual to the two parties because when they have trouble, they will go to the contract and say, What should I do in this case? What do I need to do? What does he need to do? And therefore have a manual of behavior? A contract has prescriptive statements.

[00:12:38] Party is going to supply with this regularity to part B, Part B is going to pay in these terms. And this plays part here. He is going to ask party B in due time and so on, so on. All these are prescriptive statements of what has to happen. A society needs prescriptive statements, how are we going to be burn, what are going to be authorities, how are we going to elect them? So on show on how our contracts are going to be binding, how are disputes among people going to be resolved? So we still need prescriptive statements. The thing is that now that we know that they are not objective, we are really free. We have gotten rid of this frame, that of which I got read a few minutes ago. We have got rid of this frame of justice and therefore state now decides what is the law, what is right. And that right always has quotation marks. So whatever is in the law, that is what is right. And there is no more there is no more to it. This problem, I mean, it has several sources, but I think legal positive is got a little bit confused. I had the right to say that they are confused. I know their arguments and not know them personally, but. Their argument. Let me just show you one page of my dissertation. This became famous. I am analyzing from an analytical approach and analytical point of view. The argument of Professor Hester. He's alive and he's still active. And I show this diagram to exemplify that he incurs in multiple circular reasonings. I analyze all his statements, put in propositions, and then graphing them to show that he is incurring in circular vision. And this only has to do with the Subjectivist thesis.

[00:14:39] That's what I concentrated on. So I know them and I know the kind of intellectual fraud that they are in this thesis. They have all their wonderful contributions to law. One thing that I am afraid that happened early in legal positivism is that something that is true was confused by them. If I tell you how indoctrination uses these, these example, if I tell someone, close the door that yes, it's prescriptive in a sense, but that the statement cannot be considered a proposition that can be true or false. If I tell close the door, you cannot say that's not true. You cannot say, Oh, true. It simply does not correspond. Close the door to that assessment. So from there, making a big leap, legal positivist decided that all proscriptive statements had that flaw or that characteristic of not being propositions. That can be true or false. And of course, there were other elements coming into that that we will find out when we talk about natural law, basically. And this will come again when we talk about natural law. But as I said, it was good that I show you that argument. And my thesis isn't a library, it's in Spanish. You will have to learn Spanish to read. But basically the argument for the Subjectivist thesis is that, as I said, prescriptive statements come out from the irrational nature of man, from his instincts, from his nature interests. And this will resonate with a lot of what is going on with Postmodernists. They are not bringing anything new. This is very old. This is early 20th century. Well, not very old, so this is not new. But basically what I show here is first that they incur in a circular reasoning and also that their understanding of what a moral sense and natural moral sense is.

[00:16:55] It's confused when they say that this moral sense and I just recently found out from whom it comes from. If I had known when I wrote this, it would be better when they equate this, when they say that this is equal to instincts, they are incurring in an equivocation. So I just percent following light is low of the in the sustainability of equals. I show that there are properties that are true of natural sense, that are not true of the instincts. Therefore, they cannot be the same first, or in this case, the modern natural sense. I call it moral imperatives of the conscience, because I ascribe this natural moral sense to the conscience along with the reformers force, as you will see, and all the Christian tradition, the moral imperatives of the conscience are expressed through normative or prescriptive statements, while the instincts or desires are expressed by descriptive statements. I need I want I hear all this first difference. The reports of instincts and desires can only be true if they are formulated in first person. I want we like I desire or we need. Since the propositions through which they are expressed describe precisely our subjective and private state of the person or group of people who are making those statements. While moral imperatives from the conscience can be formulated in general, impersonal and abstract form. It is wrong for anyone to take human life. Innocent life. You see, there is a little qualification, so an instinct cannot be expressed. Trace it through that form of speech. The moral imperatives of the conscience have as object of their normativity among all the things, desires and instincts. I may have a huge desire to live in this moment, or probably you may have a huge desire of living in this moment and go and get a nice dinner.

[00:19:34] But you have a certain a certain sense that it is the right thing if you came in to stay, if you don't have some old thing, or probably a better example would be sexual drive. Sexual drive would be an instinct and moral imperatives dominate or control or go burn than instinct. So we cannot have one instinct, the burning and other instinct. The product of the conscience. The object of the normativity of the conscience. Our desires and instincts. And not itself. They cannot be at the same time subject to their own norms. And your conscience cannot issue principles that regulate the same principle that it's regulating, but it can govern instincts and other forms of human behavior. The infractions of the moral imperatives of the conscience bring about guilt, something that it's just a guilt feeling or guilt complex. That's not relevant at this point. While the observance or in satisfaction of an instinct or desire, brings about feeling of frustration and or physical or organic consequence as the death or the deterioration of one's health, you have an instinct to eat. If you do not obey your instinct to eat, you will die. You will not feel guilty. You will die if you do not obey Norm from your conscience. You will feel guilty. That may cause you some physical consequence. But the consequences are there. Another difference in general and on less bigger force, greater force or strength, or a moral imperative from the conscience or of the conscience and act of the will on less unless this is what it's basically call acts of God and acts of the Prince. So unless there are acts of God or acts of the prince that hinder this. The instincts are satisfied, you satisfy your instincts eventually, while moral imperatives and be or not fulfill voluntarily, and their disobedience to those imperatives imply a decision.

[00:22:18] So if that were not the case, what object have the exhortations of the moralist and the prescription of the norms? If instincts are going to do anyway, what they are going to do? That is, if it isn't instinctive for me not to kill because I am or to put high the value of life. Why the moralist need to tell me I ought not to kill? If all the components of our right society or of our right behavior are in my instincts, why is it that moralists have to fight to show that and encourage and exhort people to do that? If it were an instinct, it would come to natural resolution. And before this is ties with what doctrine? I says before a conflict between instincts. The individual has to resort to a rational, practical decision based in what at least he thinks is the imperative of the moral conscience. Again, what doctrine that says there are all these instincts. I am hungry, but I am in the pulpit of a church preaching there. I have that instinct. But then there is reason that says you should leave that instinct for later because you cannot take out your or shoot off and cheese and eat it what you are preaching. But another example that I use whenever you go to a new building. When we were in Oxford, Matthew was with me in Oxford. When we were in Oxford, they explain us the procedure in case of fire. You go to a new building and they explain you what's the procedure in case of fire? Where do you have to go? Or do you have not to go? What you have to do? What you not have to do. The same with airplanes, security procedures and the same.

[00:24:13] They tell you what to do in case of heart attack and all that. Why you say that you have to receive instructions on what to do in this case. It is because when you are in those situations, your instincts will lead you to do irrational things. Your instincts will lead you to do things that are not convenient for you. So in advance someone has thought this has probably not to do so much with morality, but it it is again, prescriptive statements because your instincts, when you are in such pressure, are going to mislead you and misguide you. So there is a difference between what instincts would do and what a rational response to a situation would be. And most people acknowledge that when we are under pressure and are prey to our instincts, we are not going to act rationally. And therefore they make objectively rational prescriptions on what to do in order to attain the end that we want. Thank you for listening to this lecture. Brought to you by biblical training, dawg. Your prayers and financial support enable us to provide a biblical and theological education that all people around the world can access. Blessings. As you continue to study and live out your faith and as you grow in your relationship with the Lord.