Positive Knowledge Legaladmin
“Real knowledge” generally includes only information of which the person or group of people whose knowledge is at stake is consciously aware. It refers only to what the person knows when the statement is made. It does not contain facts or information that the person has forgotten or that are in his or her old records or records. See Donald W. Glazer, Scott Fitzgibbon, & Steven O. Weise, Glazer and Fitzgibbon on Legal Opinions, §§188.8.131.52 & 184.108.40.206, pp. 135-38 & 141 (3rd ed. 2008). A related concept is “personal knowledge,” defined by Black`s Law Dictionary (10th edition 2014) as “knowledge gained through first-hand observation or experience, as opposed to belief based on what someone else has said.” According to the principle of ignorance juris non excusat, ignorance or error about the law is not a defence. The mens rea of knowledge refers to the knowledge of certain facts. It is “a positive belief that there is a state of affairs.”  Even in the case of insurance contracts or applications for insurance contracts, the use of the phrase “to the best of my knowledge” rarely justifies an obligation to investigate. According to section 627.409 of the Fla.
Stat., an insurer may invalidate a policy for false statements or omissions in a claim, whether intentional or accidental. In Ocean`s 11 Bar & Grill, Inc. v. Indemnity Insurance Corp. of DC, 522 F.App`x 696, 698 (11th Cir. 2013), the Eleventh Judicial District agreed with the District Court that under Florida law, an insurer that includes the modifier “in good faith” in an insurance application has accepted a lower standard of knowledge than Fla. Stat. §627.409. The Florida Supreme Court ruled in Green v.
Life & Health of America, 704 So.2d 1386, 1392 (Fla. 1998), that matters qualified by a provision “to the best of the insured`s knowledge and conviction” cannot form the basis for cancelling an insurance policy until the application for insurance knowingly contained false information. The court described “best knowledge and faith” as a “lower level of knowledge” than that contained in section 627.409 of Fla. Stat. Id. at 1391.In Sterling Insurance Co. v. Dansey, 81 S.E.2d 446 (Va.
1954), the insured sued an insurance company for denial of disability benefits. The Virginia Supreme Court of Appeals concluded that the “best knowledge” language on the application relieves any overriding obligation (legal or otherwise) to investigate the accuracy of the warranty, and that false testimony rendered innocent does not invalidate the policy. “Best knowledge” is reflected in a statement such as “the following is in good faith” or when a written statement or representation begins with “to the best of the knowledge, information and belief of the undersigned”. Today`s imperative theories have no influence on the philosophy of law (but see Ladenson 1980 and Morison 1982). What has survived from their point of view is the idea that legal theory must ultimately be rooted in an account of the political system, an idea shared by all the great positivists except Kelsen. However, their particular idea of a society under a sovereign commander is friendless (except among the Foucauldians, who strangely regard this relic as the ideal type of what they call “juridical” power). It is clear that in complex societies, there can be no one who has all the attributes of sovereignty, because ultimate authority can be divided between organs and even limited by law. Moreover, sovereignty is a normative concept. A legislator is someone who has the power to legislate, and not just someone with great social power, and it is doubtful that “obedience habits” are a reduction of candidate to declare authority. To distinguish true obedience from random obedience, we need something like the idea that subjects are guided or guided by orders. Explaining this will take us away from the power-based ideas that classical positivism hoped to work with.
The imperativalists` presentation of the character of individual laws is also the subject of crucial objections (Hart 1961 [2012: 26-78]; and Hacker 1973). The treatment of all laws as commandments hides important differences in their social functions, in the way they function in practical reasoning, and in the kind of justifications for which they are responsible. For example, the laws conferring the power to marry do not prescribe anything; They do not force people to marry or even marry according to prescribed formalities. Reductivism is also not plausible here: we speak of legal obligations when there is no likelihood of imposing sanctions and when no sanctions are provided for (as in the duty of the courts to apply the law). In addition, we consider the existence of legal obligations as a reason for imposing sanctions, not as a consequence or component of them. This distinction between human rights and fundamental rights is not only directed against mere declarations, but also draws attention to the origins of fundamental rights that lie before and outside the State. In particular, early explanations of history are aware of this elementary importance. In this regard, the French Declaration (1789) follows the Virginia Bill of Rights (1776). Their beginning establishes valid rights at a level that precedes the state.
Subsequently, the basis for legitimizing the exercise of political power is laid; Article 2 of Virginia and Article 3 of the France state that the people are the origin of all government. It is only at the third stage that the function of the State is affected; Here, the restriction of the exercise of political power as well as the positive tasks of the state are mentioned. In this sense, from a philosophical point of view, we must reverse Benjamin Barber`s title: not “democracy first, then rights”, but “human rights first, democracy second”. The logical basis of the inclusion problem is the open texture of the law. Positivists and non-positivists agree, first, that the law has an open texture (Hart, 1994) and, second, that cases that fall within the open realm of positive law are often decided on moral grounds. Such a purely factual link is fully compatible with legal positivism. Moreover, if we now assume that moral principles are incorporated into law by virtue of their correctness by a rule of recognition as “conventional normative practice” (Coleman 1996), we remain in the positivist camp even then. A conventional practice is a practice that does or does not exist. Whether or not they exist is decided by the current positive legal system. The classification of “inclusive positivism” is therefore correct (Coleman 1996). Both knowledge has advantages and disadvantages for both buyers and sellers. It is a question of the content of all legal systems.
Where there is law, there is morality, and they regulate the same things by analogous techniques. Of course, to say that law deals with the subject of morality does not mean that it works so well, and to say that all legal systems create obligations does not mean to approve of the duties thus created. This term differs from Hart`s thesis of “minimal content,” according to which there are basic rules of violence, property, fidelity and kinship that any legal system must encompass if it is aimed at the survival of social beings like us (Hart 1961 [2012: 193-200]). Hart sees this as a matter of “natural necessity” and is willing to relativize his support for the separability thesis to this extent. But even a society that prefers national glory or the worship of gods to survival will impose on its legal system the same tasks as its morality. Unlike the rules of a gym, the law is broad in scope and achieves the most important things in any society. Indeed, our most pressing political concerns about the law and its demands stem from this very ability to regulate our most vital interests, and the broad scope of the law must play a role in any dispute about its legitimacy. (A clear argument, most developed by Raz (1994) and Gardner (2012a), is that the law not only deals with moral issues, but also makes moral claims about us. On criticism, see Kramer 1999: 83–9; Duarte d`Almeida and Edwards, 2014.) The most influential criticisms of legal positivism all stem in one way or another from the suspicion that it does not give morality the legitimacy it deserves. A theory that emphasizes the factuality of law seems to contribute little to our understanding that law has important functions in ensuring the proper functioning of human life, that the rule of law is a cherished ideal, and that the language and practice of law are highly moralized.
Accordingly, critics of positivism argue that the most important features of law are not to be found in its source-based character, but in the ability of law to promote the common good, protect human rights, or govern with integrity.