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Positive discrimination

View Poll Results: Positive discrimination is a...
Good thing 5 15.63%
Bad thing 27 84.38%
Voters: 32. You may not vote on this poll

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Old
03-17-2013, 09:26 PM
  #76
Eisen
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Originally Posted by The Moose View Post
But the separation exists in United States. So simple question to Wet, is a US law banning abortion wrong? IS a law sanctioning capital punishment wrong?

At the end of the day, any piece of law is the embodiment of ethical judgements of the society at large at a certain point in time. And any piece of law can be changed if enough number of people want to change it. According to Wet, if I lived in the US, I should accept as 'good' a law that allows capital punishment. Or, if I lived in Singapore, which also has an independent judiciary, I should accept as 'good' a law that mandates death penalty for minor drug offences. It is absurd; 'legal' and 'good' are not the same thing.
I agree with that. I do though believe that most laws are a reflection of the dominant moral. If I like it or not.
I mean, what is good? That is a question that the philosophers can't answer in 2000 years. What is legal is simple. It's documented somewhere and it's easy to follow.

I wish society would be bound by morals like Kant's categorical imperative. That would be great.

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03-17-2013, 09:29 PM
  #77
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Originally Posted by Eisen View Post
I agree with that. I do though believe that most laws are a reflection of the dominant moral. If I like it or not.
I mean, what is good? That is a question that the philosophers can't answer in 2000 years. What is legal is simple. It's documented somewhere and it's easy to follow.

I wish society would be bound by morals like Kant's categorical imperative. That would be great.
Well, those philosophers didn't meet Wet.

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Old
03-18-2013, 10:20 AM
  #78
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Originally Posted by Eisen View Post
l. What is legal is simple. It's documented somewhere and it's easy to follow.
t.
Law is far from simple and EXTREMELY difficult to follow. I know Wet and to a lesser extent me have portrayed law as this concrete principle but it really is not. Just because there is a statute or case law stating something, the law does not necessarily reflect that. The trial, superior or appeal judges do not necessarily have to follow precedent because it is not clear cut. Only cases with extremely similar facts will apply precedent. I will also refer to legal realism as to what law actually is rather than some statute or precedent. What actually happens in the court? You have some legal realist academics such as Fuller that state that what the judge had for breakfast is the biggest indicator on judgement. The law is different for every lawyer and judge because of the different interpretations. To demonstrate, we often have 5-4 decisions in the S.C.C. The law is anything but simple or easy to follow.

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03-18-2013, 10:25 AM
  #79
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Old
03-18-2013, 10:44 AM
  #80
Epictetus
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The Euthyphro dilemma is found in Plato's dialogue Euthyphro, in which Socrates asks Euthyphro, "Is the pious (τὸ ὅσιον) loved by the gods because it is pious, or is it pious because it is loved by the gods?" (10a)

Let's extend this dilemma to law.

It should look something like:

Is the law right because the law says it is right, or is the law right because of [X]?

And if it is the latter, then what is X? What reason (i.e., X) makes the law right?

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03-18-2013, 01:05 PM
  #81
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Originally Posted by Epictetus View Post
The Euthyphro dilemma is found in Plato's dialogue Euthyphro, in which Socrates asks Euthyphro, "Is the pious (τὸ ὅσιον) loved by the gods because it is pious, or is it pious because it is loved by the gods?" (10a)

Let's extend this dilemma to law.

It should look something like:

Is the law right because the law says it is right, or is the law right because of [X]?

And if it is the latter, then what is X? What reason (i.e., X) makes the law right?
What is right and what is wrong? I have made the argument before that if a member of the Nazi party killed numerous innocent people (and even enjoyed it) that they should not have been punished if he/she had not broken a law. Furthermore, even the most heinous nazi war criminals should not have been punished had they not broken any law. If there are no provisions against murder or torture than an act is legal and thus not wrong.
The definition of right and wrong is so abstract that we cannot say what is which. The law and the law alone can describe what is right and wrong. If the Criminal Code no longer prohibited murder than there would be nothing wrong with murdering people as long AS long as the rule of law existed.

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Old
03-18-2013, 03:04 PM
  #82
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Personally I don't think is that simple. To achieve any meaningful and long lasting representation you need to rectify the causes of discrimination, rather than artificially set quotas. For example, the under representation of women in STEM careers is due more to archaic cultural norms and misconceptions about the women's role in society, which in turn discourages women to pursue a STEM education, rather than to active discrimination in hiring women in STEM jobs. The solution is change these misconceptions from an early age, and as more women purse STEM education, the under representation will correct itself.

Another example would be the percentage of foreign born MPs in the House, which is lower than the percentage of foreign born Canadian citizens. Does this mean that Canadians at large are discriminating against immigrants, or that we should change the election process to ensure accurate representation? Of course not.
True, simple quotas are rarely the answer. But you say that programs that could be considered discriminatory, such as campaigns to encourage certain groups to pursue education in STEM fields, can be positive. I think that's the crux of the issue, just because you may not like quotas, it does not make all "positive discrimination" bad.

For example, someone else in the thread brought up an example of how pro hockey players are disproportionately white. Now, mandating that each team have X number of minority players would certainly be a bad idea. But, subsidizing hockey equipment purchases and league registration fees for minority youths could be a good idea. I think this analogy largely extends to other fields. If women are underrepresented in a certain profession (say, engineering) it is not necessarily a good idea to mandate each engineering company to hire men and women at a 1:1 ratio. However, something should probably be done to correct this imbalance, such as funding scholarships for girls wanting to study engineering and initiatives that try to combat systematic factors that discourage young women from pursuing engineering as a career option.

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Old
03-18-2013, 03:22 PM
  #83
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Originally Posted by Kadri43 View Post
What is right and what is wrong? I have made the argument before that if a member of the Nazi party killed numerous innocent people (and even enjoyed it) that they should not have been punished if he/she had not broken a law.
You would be of the former, then. The law by virtue of being the law determines rightness and wrongness itself. An act cannot be wrong so long as the law does not say it is wrong. So long as the law goes through the appropriate forums for it to be enacted, then it is a valid law, regardless of if it is unjust or not. Hobbes takes on this view, along with other legal positivists like H.L.A Hart (he actually argues for what you mentioned too). I'm curious to hear your specific argument, though.

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Furthermore, even the most heinous nazi war criminals should not have been punished had they not broken any law. If there are no provisions against murder or torture than an act is legal and thus not wrong.
Yup. See above (i.e., the separation of law and morality). Have you read any of the opposing views, namely, Radbruch, Dworkin, and Fuller?

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Originally Posted by Kadri43 View Post
The definition of right and wrong is so abstract that we cannot say what is which. The law and the law alone can describe what is right and wrong. If the Criminal Code no longer prohibited murder than there would be nothing wrong with murdering people as long AS long as the rule of law existed.
The problem with this is that morality is necessary to improve the framework of law. For example, what is better: a valid but unjust law? Or, a valid and just law?

I think most would easily say they want the latter. That is, we want the law to be just. But then the question becomes, how do we know that we have a just or unjust law? This requires some kind of morality. We would have to look to something outside of the law. But what exactly? And how do we determine its validity?

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Old
03-18-2013, 04:03 PM
  #84
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Originally Posted by Epictetus View Post
You would be of the former, then. The law by virtue of being the law determines rightness and wrongness itself. An act cannot be wrong so long as the law does not say it is wrong. So long as the law goes through the appropriate forums for it to be enacted, then it is a valid law, regardless of if it is unjust or not. Hobbes takes on this view, along with other legal positivists like H.L.A Hart (he actually argues for what you mentioned too). I'm curious to hear your specific argument, though.



Yup. See above (i.e., the separation of law and morality). Have you read any of the opposing views, namely, Radbruch, Dworkin, and Fuller?



The problem with this is that morality is necessary to improve the framework of law. For example, what is better: a valid but unjust law? Or, a valid and just law?

I think most would easily say they want the latter. That is, we want the law to be just. But then the question becomes, how do we know that we have a just or unjust law? This requires some kind of morality. We would have to look to something outside of the law. But what exactly? And how do we determine its validity?
I want to start with that you are obviously well versed in this area (law and morality) and am not saying you are right or wrong. I am not that well well read in philosophy but have read primary source material from political philosophers such Hobbes, Rousseau, Locke, Nietzsche, Heidegger, Aristotle and Socrates. I would say that I like Locke, Nietzsche and especially Hobbes. I am definitely a legal positivist for sure. I have read some stuff by Fuller but not the other stuff you mentioned. What is better a valid and just law or a valid an unjust law? I do not think it really matters or there is a distinction as long as it holds legitimacy and by so doing, is followed.
What is just? What is unjust? Some (as would I) would say that the state determines just and unjust through education. Our conceptions of right and wrong are already "introjected" (Herbert Marcuse) by the state and giant corporate interests.
Obviously you are very intelligent and know quite a bit more on the subject of morality than myself so what is your opinion on this subject?

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03-18-2013, 04:55 PM
  #85
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Originally Posted by The Moose View Post
But the separation exists in United States. So simple question to Wet, is a US law banning abortion wrong? IS a law sanctioning capital punishment wrong?

At the end of the day, any piece of law is the embodiment of ethical judgements of the society at large at a certain point in time. And any piece of law can be changed if enough number of people want to change it. According to Wet, if I lived in the US, I should accept as 'good' a law that allows capital punishment. Or, if I lived in Singapore, which also has an independent judiciary, I should accept as 'good' a law that mandates death penalty for minor drug offences. It is absurd; 'legal' and 'good' are not the same thing.
The law cannot possibly be wrong if the rule of law applies. Public and private law represents the public and private good or wrongs. If the jurisdiction allows for execution than it is obviously a good law. Legal and good are not the same thing but all laws must be good because they are in force. What about amendments? Well any law that was or is in force was good at that moment. Once the law changes, than the previous law is no longer good at the present moment but still good in all previous public or private wrongs.

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Old
03-18-2013, 08:00 PM
  #86
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One of the biggest issues with trying to change access is to radically alter primary education in the US and something I think many, many people would be against. You would also have to find an incentive to get more teachers, possibly better teachers, in areas that are predominantly of the lower income (inner cities with heavy minority ratios comes to mind).

Affirmative action is not the best solution and it's a sloppy solution for an issue that is difficult to fix but it was an action necessary based off the demographics and education in the United States. Furthermore, I know that some companies have two different departments that do the hiring. One that reviews the candidate and sets up the interview and then those that do the interview. So I can see why they would set up something like the Rooney Rule for companies.

I have more to say but my break is almost over. Ultimately though, the only way for this to get better isn't by throwing pebbles at a mountain but completely bulldozing down the mountain.

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Old
03-18-2013, 08:24 PM
  #87
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Quote:
Originally Posted by Kadri43 View Post
I have read some stuff by Fuller but not the other stuff you mentioned.
Yup. Fuller is pretty interesting. I only mentioned these guys because they argue for the opposite (i.e., law and morality), and provide some pretty good objections to legal positivism. The Nazi Law area is a bit grey for both parties. These guys completely reject Nazi Law and say it is invalid, and legal positivists say it is valid, but they obviously do not want those kinds of laws.

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What is better a valid and just law or a valid an unjust law? I do not think it really matters or there is a distinction as long as it holds legitimacy and by so doing, is followed.
It depends. Back then, people used to take the Ten Commandments as 'valid', 'legitimacy' and whatever else. The justification for it was, "Because God says so." Ultimately, I think legal positivism runs into a similar objection. People follow the law because, "the law says so." To me, I need some other external justification. There has to be a reason why.

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Originally Posted by Kadri43 View Post
so what is your opinion on this subject?
I value the legal positivism tradition immensely. Not because I necessarily agree with it, but because of its impact on law. It makes the law provide certainty. Some of the greatest thinkers in legal philosophy basically said, "enough with morality (at the time morality came from God, it wasn't secular), how can we improve our society through the legal system? How can it be valid?" Boom. Utilitarianism. The greatest good for the greatest number. How do we achieve this? Mill conceives of the harm principle: you are free to do what you want, so long as you do not harm others. There were also guys like Locke and Hobbes and their political works. It was one of the first times philosophy was actually actualized.

However, Hume had a devastating objection.

Quote:
David Hume famously argued in A Treatise of Human Nature[27] that people invariably slip between describing that the world is a certain way to saying therefore we ought to conclude on a particular course of action. But as a matter of pure logic, one cannot conclude that we ought to do something merely because something is the case. So analysing and clarifying the way the world is must be treated as a strictly separate question to normative and evaluative ought questions.
This is why we now say, you don't have to obey the law. But if you choose not to, you will be punished. The law is not put into place to force you to follow it. It does not create obligations.

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Firstly, that laws may seek to enforce justice, morality, or any other normative end, but their success or failure in doing so does not determine their validity. Provided a law is properly formed, in accordance with the rules recognized in the society concerned, it is a valid law, regardless of whether it is just by some other standard.

Secondly, that law is nothing more than a set of rules to provide order and governance of society. No legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what. This is seen as a separate question entirely.

What the law is (lex lata) - is determined by historical social practice (resulting in rules)
What the law ought to be (lex ferenda) - is determined by moral considerations.
The part in the bold is where I am stuck. Since right now we have no way of saying that the law in its current form is what it ought to be, you end up being a legal positivist. If you could do it, then you've created the link between morality and law.

It's still a hotly contested subject.

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03-18-2013, 08:50 PM
  #88
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As well, the American education system is inherently biased.

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03-19-2013, 06:18 AM
  #89
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Not everyone needs to have the same college education, but everyone needs to have the same access to it. That's how you truly have the best candidates available for every position.
I think this is pretty much the case in Finland. (In Sweden and Norway too)

Positive discrimination is a for a good cause but i don't believe it to be the best tool. But it basically is the only tool available at this moment.

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