[lit-ideas] Re: Univocal philosophy as the value of transcendental claims?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Mon, 5 Jan 2009 23:53:55 +0000 (GMT)
1) Not all breaches of the law, only breaches of the criminal law, are crimes.
2) In English law "dishonesty" is an element of the offence of theft: if you
can persuade a jury that you believed that right-thinking members of the public
would not find your act dishonest you are entitled to acquittal: if you hotwire
another's car to rush someone to ER you may not be guilty of theft. (It is not
enough to persuade them you don't think it dishonest - because you think, for
example, that all property is theft).
--- On Mon, 5/1/09, Robert Paul <rpaul@xxxxxxxx> wrote:
> > Something is morally prohibited because we say it is
> > wrong _and_ we say something is morally prohibited
> because it is
> > wrong. Stealing is wrong because we say that _this_
> particular act of
> > taking what is not one's own is wrong. Also, we
> say that _this_
> > particular act of taking what is not one's own is
> wrong because we
> > believe that no one should do it. Morality flies by
> going around this
> > circle fast enough that eventually it gets off the
> ground.
>
> Wonderful, just wonderful. I'm running as fast as I
> can.
I am not sure this is so wonderful: the first two of Phil's quoted propositions
in particular are crucially ambiguous. If stealing is wrong, it is wrong
because it is wrong - not because we say it is wrong (it is by-the-by that we
may say it is wrong because it is wrong). Otherwise we could deduce something
is wrong from the fact we say it is. History, and logic, suggest otherwise.
Nor do I find this circularity convincing..
> > The analogy I gave was to the legal system. An act is
> a case of
> > breaking the law because we, through our legislative
> representatives,
> > say that it is a crime. We say something is a crime
> because it breaks
> > the law.
Already breaks the law? When we decide whether certain conduct should be
criminalised or de-criminalised, we do not simply appeal to the fact that it is
already criminalised or de-criminalised - for this is to state the current
state of play and not to offer reasons why that state of play is what we ought
to do.
>If someone asks me whether stealing is a
> crime, I say 'Yes'
> > because it breaks the law.
All this would show is that 'stealing' is something prohibited by the
('positive') law: it would not show stealing is morally wrong or that the law
is right. If this seems odd, substitute 'sexual acts in private between
consenting adults' for 'stealing'. That is, if someone wants to know does the
'positive' law prohibit certain conduct you can answer them by referring to the
relevant 'positive' law; if they want to know whether that certain conduct
ought to be prohibited, an answer based on referring to the 'positive' law is
not in itself directly in point.
>If someone asks me why
> stealing is a case
> > of breaking the law, I say 'Because it is a
> crime'.
Surely there's no need to go further than simply say 'Because there is a law
against stealing'. If this is correct, it explains why stealing is a case of
breaking the law.
Is this a circle? There is a jurisprudence famously represented by HLA Hart and
his 'concept of law' which depends on a 'rule of recognition' that is
essentially circular because the rule sets the legal standard by which we judge
what constitutes the law (it turns out that to spell out the rule of
recognition you need, quelle surprise, to consult what lawyers and courts
recognise as the law). I find this idea fairly unexplanatory and unncessary.
But if there is a circle here it is not a vicious one: consider courts which at
common law set their own limits to their jurisdiction - if we ask why the court
in Pilcher-v-Rawlins has no jurisdiction, the answer is partly circular
(because the court decided it had no jurisdiction) but partly based on
principle (its jurisdiction is based of preventing unconscionable conduct and
the purchaser in good faith has done nothing unconscionable). Hart uses the
example of the metric bar as something that sets the standard
by which it is itself measured: but the point is that there is a theoretical
understanding underpinning the development of the metric bar that makes it more
accurate or convenient as a standard of measurement.
So we do not have to say simply 'This is what we do'; we can offer some kind of
explanation as to why this is what we do. And we might find this provokes some
critical response that helps us improve our current practice.
Donal
England
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