In a message dated 11/7/2015 4:02:47 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
"Consider if in Howe the Supreme Court had said something along the
following lines: “We find the concept of murder is such in its gravity that
the
concept of duress cannot apply [...]"
One philosopher of law who was concerned conceptually and analytically
with this was John Locke, a pre-Griceian (vide Alston, "Philosophy of Language"
for a treatment of Grice as a post-Lockean).
------ INTERLUDE LOCKE ON THE IDEA OR CONCEPT OF "MURDER":
Locke writes "I want to talk a little about murder, incest, stabbing."
"To see," Locke goes on: "how arbitrarily these essences of mixed modes are
made by the mind, we need but take a view of almost any of them."
"A little looking into them will satisfy us, that it is the mind that
combines several scattered independent ideas into one complex one."
"And, by the common name it gives them, makes them the essence of a certain
species, without regulating itself by any connexion they have in nature."
"For what greater connexion in nature has the idea of a man than the idea
of a SHEEP with KILLING, that this is made a particular species of action,
signified by the word "murder", and the other not?"
Perhaps Walter O. is right and WA (word analysis) should be preferred!
Locke goes on:
"Or what union is there in nature between the idea of the relation of a
father with killing than that of a son or neighbour, that those are combined
into one complex idea, and thereby made the essence of the distinct species
"parricide", whilst the other makes no distinct species at all?"
"But, though they have made killing a man's father or mother a distinct
species from killing his son or daughter, yet, in some other cases, son and
daughter are taken in too, as well as father and mother: and they are all
equally comprehended in the same species, as in that of [the concept of]
incest."
"Thus the mind in mixed modes arbitrarily unites into complex ideas such as
it finds convenient."
"Whilst others that have altogether as much union in nature are left
loose, and never combined into one idea, because they have no need of one
name."
"It is evident then that the mind, by its free choice, gives a connexion to
a certain number of ideas, which in nature have no more union with one
another than others that it leaves out."
"Why else is the part of the weapon the beginning of the wound is made
with taken notice of, to make the distinct species called "stabbing", and the
figure and matter of the weapon left out?"
Locke goes on:
"I do not say this is done without reason, as we shall see more by and by;
but this I say, that it is done by the free choice of the mind, pursuing
its own ends; and that, therefore, these species of mixed modes are the
workmanship of the understanding."
"And there is nothing more evident than that, for the most part, in the
framing of these ideas, the mind searches not its patterns in nature, nor
refers the ideas it makes to the real existence of things, but puts such
together as may best serve its own purposes, without tying itself to a precise
imitation of anything that really exists."
So Locke is being a relativist, in that in a society where a cow is sacred
for example, the killing of a cow does count as murder -- and if a cow
kills the bull gave life to her she is being a parricide.
---
End of interlude.
So, conceptual anaysis is at the very root of how legal concepts are
created and evolve (or devolve as the case might be).
Cheers,
Speranza
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