[lit-ideas] Re: Can a lawyer be a conceptual analyst?

  • From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza" for DMARC)
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Sun, 8 Nov 2015 07:52:13 -0500

McEvoy has been using the notion of 'deluded belief' recently in discussion
of whether a lawyer is best understood as endorsing a problem-solving
approach to the legal case to hand (to his hand, that is, the lawyer's hand)
or
a conceptual-analytic approach. It seems we agree that whatever the lawyer
is doing, trust the philosopher (if he is called H. L. A. Hart the better)
to see him (the lawyer) as engaged in conceptual analysis!

In a message dated 11/8/2015 2:58:58 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:

"Perhaps as light relief from talking about whether lawyers activity is
best understood as analysing concepts [a la philosophers] or solving problems
[a la all living creatures], JLS digresses into something not entirely
unrelated."

-- with the proviso that while some philosophers are dead (vide "The
Philosophical Writings of Queen Anne"), some are living creatures -- but the
disqualification of "all" for "all the rest of") is charming. Now to Newton:

"Popper would say Whewell's comment here is spot-on but, pace JLS, it is
not a mere 'qualification' of Newton's claim but a head-on dismissal of it.
We could digress further on how Newton could have a deluded belief* that he
did not use "hypotheses" but the fact is he did and not peripherally but
centrally. I.e. Newton used conjectures (though he liked to think otherwise -
that he "inferred" the truth "from the phenomena...by induction"). But as
Popper later explained, there is no such thing as "induction" in science
and all knowledge is conjectural. ... I do understand the notion of "deluded
belief" and believe there's a lot of them about."

Well, we may still argue whether there are hypotheses in law, induction in
law, and such. I.e. legal 'methodology'.

How does the philosopher of law see this?

Each varies, and even conceptual analytic philosophers vary. One blatantly
pompous view is that of Habermas, the other, less pompous, is that of
Grice.

(a) Habermas thinks legality is rooted in morality.

(b) Grice says that 'right' is perhaps the key legal concept. But he is
thinking of 'moral right', not 'legal right'. Still, he makes an interesting
proviso. He notes that, to the conceptual analytic philosoher, it may well
be that the concept of "LEGAL" right is what comes to his mind first (He
would to "to mind", but I like to qualify what mind we're talking about, if
you don't mind) -- and that the concept of a "MORAL" right comes second.

This should not confuse the conceptual analytic philosopher into thinking
that the concept of "LEGAL RIGHT" is prior to that of "MORAL RIGHT". It may
be _epistemologically prior_, and even 'conceptually prior' in some way of
prior. So the idea of conceptual analysis becomes hard work. For in ANOTHER
(Grice's preferred) way, the concept of "MORAL right" is conceptually
prior and the concept of "LEGAL right", while more evident in its
manifestation
-- it is a concept defined in the law, after all) SHOULD be accounted for
in terms of the conceptually prior "MORAL right". Not to confuse his
addressee, Grice uses subscripts here: moral right is conceptually prior-1 to
legal right, even if legal right is conceptually prior-2 to moral right.

He did not come up with the idea off the cuff of his head, as the idiom
goes, but off reading Plato's Republic. Thus Socrates would argue for this
idea that the moral-right is prior1 to the legal right (and the Neo-Socrates
that Grice sees himself as being), while it is Thrasymachus (the "sophist"
as Socrates derogatorily call him) who argues that the legal-right is prior1
to the moral-right (and the Neo-Thrasymachus that Grice sees Nozick as
being -- the sad thing is that Nozick was Grice's tutee at St. John's!).

So one has to be careful.

If McEvoy is into a problem-solving approach to law perhaps hypotheses
(rather than hypostases, like the priority of morality over legality, for
Grice) should feature largely. But I don't see lawyers 'feigning hypotheses'
much, unless they will! (I'm sure Denning could feign one legal hypothesis or
two).

As for the induction issue, that Newton and Whewell are talking about, and
Popper dismisses. Does it play a role in law? Grice thinks it does. He
notes that his conversational maxims are not "moral", yet they are things that
one SHOULD follow. Of course it is things we DO FOLLOW. So, given a maxim
(moral or other) or a law, it may well be that agents follow it because
'their parents taught them to follow them', 'they have been following all
their
lives and they don't see any major reason why to depart from what they've
been doing'). This sort of behaviour I would call empiricist and
inductivist (like the turkey who trusts his owner will feed him every day
including
Thanksgiving Day). But Grice wants to think that agents follow a maxim
(moral or other) or the law because they SHOULD so follow it.

H. L. A. Hart, following some John Austin (the philosopher of law, not J.
L. Austin, the philosopher of words) came up with a brilliant idea for that,
based on conceptual analysis. There is should-1 and should-2. Peter should
not trespass (The sign says 'do not trespass). This utterance

i. Peter should not trespass.

can be read primarily as should-1 not trespass: a mere -etic account of the
facts from the observer's point of view. But there's

ii. Peter should not trespass.

read as Peter should-2 not trespass. This allows for two alternative
readings:

iii. Peter should not trespass.

where the obligation (moral or legal) is ascribed to the UTTERER of (iii)
-- in what Grice would call a 'protreptic' aspect of the utterance which is
not merely 'exhibitive' of the utterer's intention, but intends to
'convince' Peter not to trespass. Alternatively, it can be read as

iv. Peter should not trespass.

where the obligation is now something Peter himself commits himself too.
The example Grice uses in "Aspects of reason" is whether Nixon should become
professor of pastoral theology at Oxford -- so there!

So, a conceptual analysis of the law need to mount a few steps up the
ladder of inductivism and empiricism into a good old form of rationalism alla
Kantotle -- the greatest philosopher of law of all time!

Cheers,

Speranza



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