I wrote:>But Ithink it useful to first raise the issue as a question because,
by seeing howCA is adequate to answer the question, we might appreciate how CA
is inadequateas an explanation.>
I meant:>But Ithink it useful to first raise the issue as a question because,
by seeing howCA is inadequate to answer the question, we might appreciate how
CA is inadequateas an explanation.>
It is possible this is one of those (many) cases where the correct sense is
obvious despite the mistaken use of "adequate" when I meant "inadequate".
As to JLS' remarks re object and meta-language, I am unsure this is very
helpful.
What might be true enough is that a lawyer might be perfectly competent in
practical terms even though they have a deluded belief in CA (equally, if the
belief in a problem-solving approach is mistaken, a lawyer might be perfectly
competent in practical terms even though they have a deluded belief in law as a
form of problem-solving). This is akin to saying a mathematician might be
perfectly competent as a mathematician whether their 'philosophy of maths'
(realist v intuitionist etc.) is correct or not; or that a scientist mght be
perfectly competent in their scientific work even if they have a mistaken
philosophy of science.
We might add that having the 'correct philosophical' understanding of law or
maths or science does not guarantee any greater degree of competence in these
fields than those lacking 'correct philosophical' understanding. No one thinks
that Newton's occult metaphysical beliefs, which underpinned his belief that
base metal might be turned into gold, invalidated his physics (btw, the view
that base metal might be turned into gold is hardly that far-fetched compared
to many views that have received eventual backing from scientific testing, such
as 'continental drift'); and whatever may be the virtues of Wittgenstein's
'philosophy of mathematics' the evidence does not support the view that
Wittgenstein was a great mathematician or even logician [see, for example,
Wittgenstein's view of Goedel's work].
There may be links between philosophical understanding of a field and
competence within that field, including positive correlations, but this whole
area is vexed and it may be accepted that there are not straightforward
one-sided positive correlations or correlations that hold for all individuals.
Hence even if CA is a delusion the efficacy of which is explained by its
'problem-solving' effects, given those problem-solving effects it may well be
that a lawyer who adheres to viewing his work as an exercise in CA is perfectly
competent in practical terms.
But none of these points need bring in a distinction of the 'object'
'meta-language' type (though no doubt they may be related in some way to this
kind of distinction, it is more a distinction not in terms of language but in
understanding at a 'first-order' and then at a 'meta-' or 'philosophical'
level).
It is perhaps the fundamental problem with the view of law as CA that it is not
properly explanatory but at best a kind of pseudo-explanation - Hart's "Concept
of Law" revolves around a "rule of recognition" that is a pseudo-explanation in
its circularity (and is a historico-epistemic fiction to boot, for lawyers no
more need a "rule of recognition" to identify law than mathematicians need one
to identify maths).
D
