Quote (fender @ 5 Apr 2019 15:34)
are you trying to suggest that the 'definition' i highlighted was not your attempt of 'explaining' the term legal positivism, or are you suggesting it's a correct one? and if it's the former, what did you mean with 'legal positivism isn't the same as rule of law' then?
you criticize me for the double standard of being a proponent of "the rule of law" while also showing sympathy for the father of the children who took them out of their foster family.
this clearly shows that you refer to the term "rule of law" in the colloquial sense, not in the legal philosophy sense. in this colloquial sense, "rule of law" is used when one actually means "obedience to the law", as opposed to arbitrariness.
legal positivism, according the definition on the following site:
https://www.iep.utm.edu/legalpos/means:
Quote
According to legal positivism, law is synonymous with positive norms, that is, norms made by the legislator or considered as common law or case law. Formal criteria of law’s origin, law enforcement and legal effectiveness are all sufficient for social norms to be considered law. Legal positivism does not base law on divine commandments, reason, or human rights. [...]
Legal positivism does not imply an ethical justification for the content of the law, nor a decision for or against the obedience to law.
Simply put, legal positivism says that all positive (codified) law is valid and applicable irrespective of reason or ethics, as long as it was passed correctly according to some formal criteria.
As the definition already says, a law being a law in the legally positive sense does not imply a decision for obedience to this law.
Hence, acknowledging that a swedish law which presumably was passed in correct fashion by their parliament/sovereign is applicable law and valid in the sense of legal positivism does not necessarily contradict being of the opinion that this law is unreasonable, or being of the opinion that the urgency of this law can be dominated by other arguments of reason, or of legal or moral nature. In this case, the right of a father who didnt commit crimes to want to do everything in his power to protect his children and provide the best possible environment for them, and to intervene when some outside force (in this case the swedish foster care agency) is jeopardizing their well-being.
In any case, I'll admit that this was a relatively obscure distinction to make, which is why I used a more clear language and argumentation in
http://forums.d2jsp.org/topic.php?t=77347766&f=119&p=544504444when I wrote
Quote (Black XistenZ @ 5 Apr 2019 08:52)
There is a difference between the stance that "the rule of law is very important" and "the rule of law is absolute, we shall not make any exceptions, we shall not allow any violation of any law, no matter how inadequate and injust said law may be."
in an attempt to bring the discussion back to its origin: you accusing me of double standards.
I think the distinction is a lot easier in German:
"Recht" vs "Gesetz"
Betonung des Rechtsstaatsprinzip vs sklavische Befolgung jeglicher Gesetze.
This post was edited by Black XistenZ on Apr 5 2019 09:46am