Print Story Of shotguns, the history of legal positivism, and etcetera
Diary
By lm (Mon Jan 17, 2011 at 03:31:01 PM EST) (all tags)
Nothing here to see. Please move along.



Some of the best memories I have of my father are of going out hunting with him. I'm not sure when the hunting trips started or when they ended other than that they started sometime well before high school and likely ended prior to my junior year. The pattern was always the same, we would wake up godforsakenly early to make coffee, pack lunch, load up the car, drive a couple hours into the countryside (usually up around where my uncle Jack lived) stopping only to grab breakfast from the last McDonald's before hitting the countryside, and be out in a field or in the woods by the time hunting hours started (half an hour before sunrise). The weapon I used during these trips was the same twenty gauge single shot gun that my father had first learned to shoot with. I never turned out to be a very accomplished hunter. I never even managed to hit a moving target (the one exception being my first kill, a red squirrel that charged me and I blew away less than ten feet from where I was sitting). But I did bring down my share of squirrels.

When my father died in 2003, I came into possession of his old guns. Sadly, I couldn't find the gun that he and I had both learned to shoot with. I suspect that he either gave it to one of his younger brothers to teach their children to shoot or sold it. In fact, of the three shotguns, rifle and pistol I remember him having from my childhood, only one pump action shotgun and a .22 repeating rifle were left.  Ever since, I've been meaning to get a new hunting license, clean the weapons up and go out on my own. Unsurprisingly, I've never gotten around to it.

Then for Christmas, my niece bought me a cleaning kit. (I suspect that either her mom or her dad per her up to it. Being less than two years old and being terrified of me, I can't imagine her picking out a gun cleaning kit for a gift.) Saturday night, I spent a couple hours breaking down the shotgun and cleaning it. That brings me one step closer. Now I need to get off my duff and take the classes I need to take to get a hunting license in Maryland. (I also failed to find any of my old hunting licenses when cleaning out my father's old house. So far as I can tell, Maryland requires passing the state course for a hunting license if you don't have an old one.)

I can't figure out exactly what sort of shotgun it is that I've got. I know it's a twenty gauge pump action. The barrel is marked with a proof mark ( a spade) and loudly proclaims that it can chamber three inch shells. But there is no brand name anywhere that I can find. There is a serial number on the receiver but I tried a few different ways to determine manufacturer from a serial number and all have failed thus far. I may need to take a trip to the library and dig into some books. My best guess at this point is that it's an Ithaca model 37.

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In my class on Wittgenstein, there is no final exam. Rather the grades will be assessed by a field report on a specific area of Wittgenstein's thought (which I take to mean something like most entries at the Standord Encyclopedia of Philosophy) and a term paper. I'm not a big fan of what I've read of Wittgenstein. Nor, like Bertrand Russell, can I see why he's such a big deal. Nevertheless, given that so many people in the world of academia do think he's a big deal, I thought it would behoove me to take a course on his Philosophical Investigations.

For the field report, I'm toying with the idea of covering Wittgenstein's idea of private langauge. It has a bit of attraction to me in that there is a dispute over whether it matters at all and, if it does matter, what it means. As for the term paper, I dunno. It seems to me that much of what he says is similar to some of the Stoics (e.g. Chryssipus). But there is a question, there, of what those Stoics actually said about language versus our modern interpretation of them that may very well have been influenced by Wittgenstein.

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I've been thinking a bit about issues of mortality for reasons that I'm not prepared to share online. This past week, a pretty powerful essay on the issue started to develop in my head. The problem is that there are vital aspects of the essay forming in my head that I'm not willing to share in just about any public forum. This makes putting the essay together something of an exercise in futility. Or, perhaps, an exercise in writing esoterically. I don't know if I'm clever enough to really pull off the latter.

In news that may or may not be related to the preceding paragraph, I'm not quite certain I've ever seen that much blood before. At least not out of a human.

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Friday, I went out running. Sometime after the first mile, my right knee started hurting. So I stopped running. I walked back to the apartment and went to the gym to do some time on the elliptical machine. That has to be the most boring machine to operate ever created. The continued to hurt for a bit of the day. By afternoon, there was no residual pain. The next day, I did a slow lope instead of a proper run and covered four miles without any pain. This morning, just after the four mile mark, the knee started tweaking a bit, so I stopped.

A few weeks ago, I moved from supine leg lift crunches to bicycle crunches. At first, I had to cut back on the number I do in each set. Then I worked back up to a set of forty along each of the three circuits I do on the weight machines.

On the weight machines, I'm continuing to focus on the negatives. I lift quickly and then lower the weights as slowly as I can bear to lower them. The weight I'm working with at present (ninety pounds) is starting to get pretty comfortable. I'll probably add another plate after a couple more weeks.

My weight is unchanged, still cycling around 12 stone 8 and under.

:: :: ::

Friday's class on the philosophy of law was interesting. The central theme of the course is to be the conflict between legal positivism and natural law theory from the second half of the twentieth century up through the present day. This conflict can be found at least as early as Heraclitus (sixth to fifth century BC) and is prominent in some of the Platonic dialogues. The first lecture was almost entirely on the historical background to the contemporary debate. According to my notes, the following is the relevant history.

For most of history legal positivism has been the minority view with most legal scholars holding to some variant of natural law theory. This began to change in the late eighteenth century when legal positivism began to gain new intellectual currency. In the present day, legal positivism is overwhelmingly ascendant. The back story to the waxing of legal positivism and waning of natural law theory begins with the natural law theorist, Sir William Blackstone who was the first legal scholar to seriously treat British common law. Prior to Blackstone, the academic study of law focused on canon law and Roman law. Study of common law happened only after degrees were awarded and would be lawyers would begin apprenticeships. It would seem that it was treated as more of a trade craft than as an academic discipline. This state of affairs would be changed forever with the publishing of Blackstone's Commentaries on the Laws of England. While not philosophical treatises, the Commentaries clearly presumed natural law theory and social contract theory. Moreover, Blackstone argued that common law was the perfect realization of natural law and that any law which was contrary to natural law was null and void.

Into this picture, steps Jeremy Bentham who studied under Blackstone and was so repulsed by the latter's legal views that he effectively spent the rest of life refuting them. Bentham's A Fragment on Government is a commentary on Blackstone's introduction and is one of the first clear formulations of the philosophy that would later become known as Utilitarianism. One of Bentham's chief arguments against Blackstone's view is that if common law is natural law, then there is never the need for legal reform. But, in Bentham's view, analytical jurisprudence (clearly stating what the law is) is entirely distinct from the question of what the law ought to be. Conflating these two questions, as natural law theorists do, leads only to problems.

Bentham's approach to legal philosophy was also adopted by his colleague John Austin. Austin's formulation of legal positivism explicitly brings out its differences from natural law theory.


  1. Law is a command from a superior to an inferior.
  2. The key to jurisprudence, then, is understanding that a law is a command and the analysis of that command.
  3. Commands are contingent on both the superior and the inferior understanding the threat of force.
       

         
    1. The superior must expect that the inferior will obey, i.e. be willing to apply force if not obeyed.
         
    2. The inferior must expect that the superior will do him harm if not obeyed, this psychological state is the basis for legal obligation.
         

  4. The superior has no legal limitations in what can be commanded. Any command issued from a superior to an inferior is a law so long as the superior is willing to coerce obedience and the inferior expects to be punished for disobedience.

Legal positivism continued to become more prominent in the Anglosphere throughout the nineteenth century, eventually informing the views of the most well known US legal scholar, Oliver Wendell Holmes, Jr. Holmes essay The Path of the Law is probably the most well known essay on the philosophy of the Law by an American author. Holmes view presented in Path of the Law is best described as legal realism. This view is offered by Homes as the correct alternative to two flawed views, natural law theory and legal formalism. The former is flawed because it conflates morality of the law. The latter is flawed because it conflates logic with the law. (Legal formalism is the view that laws are universal premises which only need to be logically applied to particular circumstances to reveal a necessary conclusion.) Legal realism is the notion that law is an empirically founded prediction on what the courts will decide in any given case.

Law, in this view, depends on several factors but is not identical with any of them:

  1. The discretion of court officials including the judge, the jury, the prosecuter, etc.
  2. Written statutes as written, as enforced, and as understood.
But the legal realism of Holmes died off in the 1940s. One factor in its declines was its association with moral relativism and the repositioning of the US as the moral antidote to the evils of the axis powers during WWII and to the Iron Curtain in the post-war period. Moreover, this theory made many people uncomfortable because it made judges, who are almost entirely politically unaccountable in the US, the sole arbiter of the law. (Not to mention that Holmes appears to have been a social darwinist and social darwinism also largely fell out of favor during the same time period.) Even with the decline of legal realism, the legal positivism of Holmes remained very influential and set the stage for the Hart/Fuller Debate in the pages of the Harvard Law Review in the mid-fifties.

::

Trappist monks build, donate casket for nine year old victim in the Tucson shooting deaths. If only more Christians would spend their time and energy on doing this sort of thing rather than being culture warriors, picketing funerals, etc.

Sad news, Dietrich is dead.

More sad news, Dr. Creep is dead. I grew up watching Dr. Creep's Shock Theater, a televised matinee of this or that horror/sci-fi movie bookended by short clips of himself either acting out a mini-story or offering commentary on the film. It occurred to me that one of the losses that homogenization of broadcast television is that all these local shows like this are a thing of the past.

CNN picked out the five most underreported business stories in 2010: Apple's slow move into the cloud, the fact that we're not in another tech bubble, people giving up TV for streaming and/or Netflix are not damaging cable companies, Twitter is not mainstream, the Kindle. With the possible exception of the last of those, I'd say they are all underreported because they are non-stories.

Win Neko Case's 1967 Mercury Cougar. A '67 Cougar could be yours. Need I say more?

The funk of 40,000 years and it's still ALIVE!

Here in the DC metropolitan area, a local school district robo-called parents at 4:30am to notify them of a two hour delay to the start of school. An enterprising parent got mad and robo-called school board members to let them know he got their message. The school board member quoted at the end of the article should get some sort of award, "It's certainly something that I welcome all parents to do - communicate with us, by any means necessary"

Rabbi Shmuley Boteach argues that Sarah Palin's use of "blood libel" was historically and morally justified. Boteach's argument is interesting in some ways. It's got a bit of a Thomistic flavor in that one of the things that the angelic doctor was famous for was trying to interpret texts in the most favorable light possible. Personally, however, I think it misses the elephant (!) in the room. From what I gather, and I could be wrong on this, Palin belongs to something of a Pentecostal sect of Christianity that sees itself as the New Jerusalem. Part of the theology of most such sects is that the Roman Catholic Church is the Whore of Babylon. Historically, the blood libel is an invention of the Catholic Church against the people of Israel. So when the contemporary form of the Whore of Babylon (those wicked liberals) attack the spiritual Israel (Palin and those who are on her side), a replay of the ages old blood libel is in motion.

Did you know that baby fingers make good ferret food?

Got Settlement? It looks like Fairey and the AP have settled over Fairey's infamous Obama poster. While it looks to me like an obvious case of fair use, I can see how there is room for doubt. And it isn't like the AP would be settling if their target wasn't so high profile. If Fairey were just a poor, everyday schmuck, he'd probably get railroaded.

Baby Doc goes back to Haiti. I can understand his desire to do so. I'm not so certain that it is a great idea.

Stephanie Six supposedly slaps sherrif's steed. Should she serve sentence?

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Of shotguns, the history of legal positivism, and etcetera | 16 comments (16 topical, 0 hidden) | Trackback
streaming/netflix and broadband by georgeha (2.00 / 0) #1 Mon Jan 17, 2011 at 03:48:13 PM EST
I don't know where those CNN tech writers live, but for the longest time our broadband choices were cable or DSL. They're probably still the cheapest.

The better comparison is with physical media. I was laughing on the inside at the mall yesterday, wandering through FYE while waiting for our Apple appointment, looking at the doomed physical media.

Only to lose our internet last night.


Blood Libel by jimgon (4.00 / 1) #2 Mon Jan 17, 2011 at 04:29:35 PM EST
I have no issue with someone using the term.  My only problem with Sarah Palin using it is that she most likely didn't actually know what she was saying.  A couple conservative columnists had used the term last week prior to Palin's bit.  It's my opinion that she or her writer picked that up and thought it sounded good and ran with it.  I appreciate your attempt to put a high brow spin on it, but I think you are way above Ms Palin on that.  There was no high minded philosophical usage.  It was almost definitely usage by someone who didn't understand what they were doing.  "Oooo, blood libel.  That sounds pretty good.  Let's run with that."





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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
Remove and examine the choke. by ammoniacal (2.00 / 0) #3 Mon Jan 17, 2011 at 04:39:48 PM EST
Look on the rails under the slide too.

Some people need killin'. Baby Doc's one of 'em.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

I'm sure he'll get his/. by dev trash (2.00 / 0) #9 Mon Jan 17, 2011 at 06:59:18 PM EST
Bad thing is I think a few thousand Haitians may well go down with him.


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Click
[ Parent ]
How much of a base does he have left? by Captain Tenille (2.00 / 0) #11 Tue Jan 18, 2011 at 03:55:24 PM EST
Whatever members of the Tonton that are still alive have to be middle aged by now, and probably not as well suited for their voodoo militia duties. 

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/* You are not expected to understand this. */


[ Parent ]
That term is deprecated. by ammoniacal (2.00 / 0) #14 Wed Jan 19, 2011 at 06:22:30 PM EST
Last I heard, attache was in vogue.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
Elliptical machines by tuscoops (2.00 / 0) #4 Mon Jan 17, 2011 at 04:50:37 PM EST
are my favorite. They allow you to close your eyes so that you can focus on your core muscles and balance with each step as well as provide you with the ability to walk backwards. They're also great for interval training, which I can usually burn 500 calories in half an hour doing if I have my Ipod.

Sounds like you may need a rowing machine, however, given your knee issue.


the elliptical machine didn't bother my knee by lm (2.00 / 0) #6 Mon Jan 17, 2011 at 05:20:18 PM EST
I just found it boring, tediously boring.

I expect my knee issue will resolve itself so long as I continue to take it easy and stop when it tells me to stop.

Rowing machines, I do like. I don't have access to one though.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Shotgun tales by anonimouse (2.00 / 0) #5 Mon Jan 17, 2011 at 05:07:14 PM EST
1) My father goes pheasant shooting, and blasting away hits a pheasant. This one descends toward the road by the farm, where a police escorted large load is driving past. Said pheasant descends directly on top of the large load and heads off to its funeral with an escort.... The gun dogs didn't manage to retrieve that one for some reason....

2) My father goes pheasant shooting, and fires at a pheasant hitting it. Unfortunately the farmer who owns the land has parked his Land Rover Discovery below said pheasant, which impacts on the windscreen, shattering it. Apparently the "terminal" velocity of a shot laden pheasant is quite high.....




Girls come and go but a mortgage is for 25 years -- JtL
modern law by aphrael (2.00 / 0) #7 Mon Jan 17, 2011 at 06:26:37 PM EST
while it's true that formalism has made a comeback of sorts, it's also true that what goes by the name of formalism today is a pale shadow of the pre-Holmes formalism.

The doctrine which calls itself "legal realism" has fallen into disfavor ... but if you look at recent court decisions or law review articles, it's pretty clear that Holmes-era realism still has an incredible amount of influence. I'd even say it's the dominant analytical mode in legal academia.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

Would you consider Richard Posner an example? by lm (2.00 / 0) #16 Sat Jan 29, 2011 at 11:45:17 AM EST
If not, who would put into the camp of contemporary legal realism?

This weekend, I've been reading through the debate between Posner and his critics over The Problematics of Moral and Legal Theory. I can't recall ever seeing such open vitriol in academic writing: Posner blatantly  comparing natural law theorists to the Taliban, Dworking saying Posner seems to be arguing that judges are necessarily moral imbeciles and ends up proving himself correct by his own example, etc.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
that horse story by dev trash (2.00 / 0) #8 Mon Jan 17, 2011 at 06:51:14 PM EST
has already been done.  I think two summers ago a college kid smacked a police horse after he claimed it stepped on his foot ( a foot that showed no damage ).  I can't remember the outcome but here in PA I think it's a felony to strike an officer, human dog or horse.


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Click
Hunting. by wiredog (2.00 / 0) #10 Mon Jan 17, 2011 at 07:04:43 PM EST
In college went dove hunting. Saw a covey rise, fired, 3 squirrels fell.

Earth First!
(We can strip mine the rest later.)

Cheney? -nt by chuckles (2.00 / 0) #12 Wed Jan 19, 2011 at 04:51:11 AM EST


"The one absolutely certain way of bringing this nation to ruin [...] would be to permit it to become a tangle of squabbling nationalities"
[ Parent ]
culture warriors, picketing funerals, etc by duxup (2.00 / 0) #13 Wed Jan 19, 2011 at 02:06:23 PM EST
Those are the folks who make the news.  I think they're in the minority.

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funeral picketers, sure by lm (2.00 / 0) #15 Wed Jan 19, 2011 at 06:48:49 PM EST
But I know plenty of culture warriors that never make the news.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Of shotguns, the history of legal positivism, and etcetera | 16 comments (16 topical, 0 hidden) | Trackback