¶ … Individual Rights for a Nation
Introductory Supporting Analysis
The legal and political philosophical principles that ostensibly will advance the Nation of Tagg and its political establishment are the focus of the first section of this paper. The Nation of Tagg utilizes a democratic republic form of managing the body politic via the use of popular determinism. The question as to whether Natural Law or Legal Positivism as a philosophical approach to law making within Tagg will be critically analyzed.
The Theory of Natural Law is derived from the notion that an overlap does exist between morality and the law of the land. However, the relevance of natural law has been questioned by contemporary philosophers to whether such a theory can merge into a complex and modern society that thrives on the existence of a large 'grey area', an overlap, between morality and law.
According to Carr (2002), "To modernize natural law, that is, to make it current, Braybrooke thinks it necessary to make it both secular and empirical, and he believes it possible to discover such a theory in Aquinas by foregrounding certain elements of Thomistic doctrine and deemphasizing or ignoring others. A secular and empirical natural law theory, it turns out, is constituted by a set of rules that serve to meet human needs and make possible the thriving of individuals and society." (Carr, 2002)
Carr makes the argument according to the thoughts of Braybrooke that the secular and empirical movement within natural law seeks to modernize the theory into a contemporary format capable of acceptance by the body politic. The details of the changes to the purview of natural law are described. According to Carr (2002), "Since prescription is the flip side of description in naturalistic ethics, he thinks it also legitimate to say that these rules ought to be accepted and followed in order to guarantee individual and societal thriving. The rules gain empirical support by looking to basic human needs and acknowledging their obvious importance for human well-being. Since human beings require basics like food, shelter, and security, it is necessary to build a social support system capable of providing these goods, and the rules necessary for the continued success of this social enterprise are presumed by Braybrooke to qualify as natural laws." (Carr, 2002)
Braybrooke poses an argument that ostensibly is not egalitarian in nature it is rather socialist and seeks to limit the thriving of the unit at the expense of ensuring that the whole is able to thrive. This is a misuse in the philosophy of natural law, by declaring that it is morally obligated upon society to ensure that all are provided with the basics including food, shelter, and security.
Under natural law however, the Elders and the Leaders of the Island Nation of Tagg do not necessarily need to be concerned or worrisome with regard to the influences from the outside world onto Tagg and its political establishment. Natural law in its overlap of morality, seeks to establish and maintain morality simply by its overlap. The outside world is somewhat populated with legal positivism, which ostensibly is the influence to which the Elders and the Leader are concerned.
The history of the Island Nation of Tagg is that of its individual tribes' and subsequent cultural beliefs, all of which would lose identity and subjugate meaning should the island decide to conform to legal positivism. Natural Law Theory is the ideal philosophy that will prevent the tribal customs and identity from being compromised as well as prevent the influence of outside society from engaging and changing the philosophy of the Nation of Tagg.
Legal Positivism as described by Tamanaha (2001), "In the course of reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified." (Tamanaha, 2001) This quote is extremely important as it describes what can happen to the function of law and the idea of morality as requiring protection under the law when considering the societal and tribal beliefs and customs are a function of the collective morality of the Island Nation of Tagg.
Legal Positivism poses a risk to this natural order by altering the framework of natural law and creating an 'outsider' framework of law that is based on the tenets of legal positivism and not of Natural Law. Legal positivism will undermine the inherent and inalienable and legal rights of all Tagg inhabitants that are born free and equal. Additionally,...
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