In a message dated 11/7/2015 4:02:47 A.M. Eastern Standard Time,
"Where there are changes in the so-called ‘conceptual scheme’ of the law,
as expounded in terms of ‘conceptual analysis’, it is likewise difficult
for ‘conceptual analysis’ to explain how or why those changes occur."
I think one (philosopher of law?) who was obsessed with this was Donald
Davidson (who taught with Grice at Berkeley*)
(* which Feyerabend hated: he once joined Grice and Davidson for a final
examination of a graduate student only to find that Davidson, Grice, and the
student, spent three full hours examining possible conversational replies
to "There is a rhinoceros in the refrigerator").
And I think it is appropriate to recall Davidson because if we are going to
talk of conceptual change in legalese (or change in legal concepts) we may
need to talk of 'conceptual schemes'.
****************** INTERLUDE ON CONCEPTUAL SCHEMES AND WHY DAVIDSON HATED
Davidson claims that Quine forgot about a third dogma of empiricism which
is the idea that one can distinguish within knowledge or experience between
(a) a conceptual component (the ‘conceptual scheme’) and
(b) an empirical component (the ‘empirical content’)
(a) is often taken to derive from language and the later from experience,
nature or some form of ‘sensory input’.
While there are difficulties in even arriving at a clear formulation of
this distinction (particularly so far as the nature of the relation between
the two components is concerned), such a distinction depends on being able to
distinguish, at some basic level, between a ‘subjective’ contribution to
knowledge that comes from ourselves and an ‘objective’ contribution that
comes from the world.
What the Davidsonian account of knowledge and interpretation attempts to
analyse, however, is that no such distinction can be drawn.
Attitudes are already interconnected -- in Denning for example -- "the
trouble with Denning is that he was always re-making the law and we never
knew where we are" — causally, semantically and epistemically — with objects
and events in the world, while knowledge of self and others already
presupposes knowledge of the world.
The very idea of a conceptual scheme is thus rejected by Davidson )but not
Grice) along with the idea of any strong form of conceptual relativism.
On the other hand, H. L. A. Hart, the famous philosopher of law, was
possibly a relativist in that a society S1 may invoke a recognition rule that
just "not recognised" by Society S2.
For Davidson, more simplistically, to possess attitudes and be capable of
speech is already to be capable of interpreting others and to be open to
interpretation by them.
But surely legal concepts keep changing -- hey, they possibly change in
one's lifetime, and I shouldn't be surprised if Cicero (a lawyer) changed his
legal concepts during his life -- cut short, alas, by Marcantonio as the
Italians call him.
Cicero, "De legibus" -- The purpose of positive law, for Cicero, is to
provide for "the safety of citizens, the preservation of states, and the
tranquility and happiness of human life." In this view, "wicked and unjust
statutes" are "anything but 'laws,'" because "in the very definition of the
term 'law' there inheres the idea and principle of choosing what is just and
true." Law, for Cicero, "ought to be a reformer of vice and an incentive to
virtue." Cicero expressed the view that "the virtues which we ought to
cultivate, always tend to our own happiness, and that the best means of
promoting them consists in living with men in that perfect union and charity
which are cemented by mutual benefits." Cicero influenced the discussion of
law for many centuries to come, up through the era of the American
Revolution -- even if the King of Britain found the Ciceronian concept, as
by the revolutionaries, 'unlawful at heart'.
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