[lit-ideas] Hartiana
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- Date: Sat, 14 Mar 2015 19:42:59 -0400
Since I'm not sure I'm responding to McEvoy's points rather than being
inspired by them, I feel like changing the subject-header to "Hartiana", since
MY interest is how H. L. A. Hart's legal philosophy (a positivistic
approach) differs from H. P. Grice's, which I would dub as being more of a
'moralistic' type -- in the _good_ sense of moralistic (Fortunately, it only
has
ONE: "Do not multiply the senses of 'moralistic' beyond necessity").
I used to contribute to this thread, "The Philosophy of Law" (*HERE*) but
Grice mocked those philosophers who were specialists: "This is Mr. Poodle,
our man in seventeenth-century continental aesthetics". To Grice, that
report meant that Poodle was even BAD at THAT: "Philosophy, like virtue, is
entire", was Grice's motto. So I don't feel like seeing Hart as a mere
philosopher of law, but as a philosopher _simpliciter_.
In a message dated 3/14/2015 3:43:36 P.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes in "Law as problem-solving with W3 content":
"Without writing a book, I would like to convey some understanding of law as
problem-solving with W3 content."
where W3 is the third realm -- or "Das Dritte Reich" if you mustn't!
McEvoy goes on:
"How best to go about this isn’t clear-cut."
Where 'cut' is a figure of speech, as is 'open' in "Open Society and its
enemies" ("Some will criticise my use of 'open' as applied to 'society' as
too figurative to be true -- or false for that matter").
McEvoy goes on:
"This post will try to work with a sketch made up only of clear lines of
thought, uncluttered with the kind of complicating detail that afflicts many
law reports and other legal materials."
Indeed. After reading H. L. A. Hart's work on the philosophy of law, with
all the legal detail aiming at clarity, the only thing D. Lewis (the
philosopher) had to say was: "Clarity is not enough"!
McEvoy goes on:
"Legal materials may be difficult to follow, but when we understand a
legal problem it is rarely hard to explain (a) the character of the problem
(b)
the character of possible solutions (c) the relative merits of the
possible solutions. In the light of (c) especially, we can better understand
the
legal reasoning of courts which might otherwise seem opaque."
Good. The underlying thesis is that a legal philosopher, such as H. L. A.
Hart was, was aiming at this: understanding how judges -- like Judge Judy --
reason.
McEvoy:
"Among the many things this discussion hopes to bring out, is how “
conceptual analysis” plays next to no role in legal reasoning:- even though we
could strive to account for legal reasoning by way of “conceptual analysis”,
it is in fact the character of the problem, and its possible solutions, that
drives legal reasoning and decision-making."
With a finality clause; because, as McEvoy mentioned in a previous post, a
court proceeding cannot go on 'ad infinitum'. A decision can be appeal,
and the appeal appealed, and the appeal to the appeal appealed, but this
cannot go on 'ad infinitum'.
It *can* in "Das Dritte Reich", though!
McEvoyg:
For those still interested then, we may start with two legal problems. (1)
A ship is badly damaged by a fire. The insurers refuse to pay the
owners, claiming that the fire was started deliberately in a way that falls
outside the insurance cover. The owners sue the insurers under the contract of
insurance, seeking to prove that the fire started by accident as covered by
the insurance. In this civil case, the judge must as a matter of law decide
on “the balance of probabilities”. After hearing each version of how the
fire started, the judge finds that neither version is probable but that the
insurer’s version is even less probable than the ship owner’s. Given this,
should the judge as a matter of law: (a) Find for the
ship-owners/plaintiffs? (b) Find for the insurers/defendants? (c) Find
for neither? My
contention is that the conclusion we should reach here cannot be decided
by mere “conceptual analysis” of the notion of “the balance of probabilities
”. It depends instead on understanding the character of the problem at
issue and the relative merits of the possible solutions (a) (b) or (c)."
No, a mere 'conceptual analysis' of 'balance of probabilities' won't do! We
may need a conceptual analysis of 'find for', meaning, 'to determine or
judge' for.
McEvoy:
"It is true that having decided between (a) (b) or (c), we could dress up
our justification by claiming it follows from a “conceptual analysis” of
the notion of “the balance of probabilities” – but the truth would be that
this “conceptual analysis” would itself merely be one of a number of
logically possible interpretations of the term “the balance of probabilities”.
What is merely one of a number of logically possible interpretations lacks
the necessity that would be essential to a genuine “conceptual analysis” –
for a genuine “conceptual analysis” would be one that rests on the only
logically possible analysis of the concepts involved. (It may also be shown
in due course that the notion of “the balance of probabilities” – though
important - is not itself sufficient to characterise the problem at issue.)"
"a genuine “conceptual analysis” would be one that rests on the only
logically possible analysis of the concepts involved."
That seems a bit dogmatic. A more tolerant view would seem to allow for
there not necessarily being ONE logically possible analysis.
In fact 'conceptual analysis' if understood as a methodology in philosophy
(especially ordinary language philosophy of the type Hart practiced) would
be boring if "the only logically possible analysis" is tolerated, because
the methodology rests on there being various, alternate conceptual
'analyses' -- hence rational disagreement among philsophers, as when J. L.
Austin
said to Grice, rationally: "We agree to disagree".
"The balance of probabilities" requires an interesting analysis or a few of
them, even for Popper?
At one stage of the development of his philosophy, Popper was allegedly
motivated by the desire to make sense of single-case probability attributions
that one finds in quantum mechanics—for example “the probability that
this radium atom decays in 1600 years is 1/2”.
Cfr. McEvoy's example, which is admittedly vague:
Without stating the claims, McEvoy writes: "The judge must as a matter of
law decide on “the balance of probabilities”. After hearing each version of
how the fire started, the judge finds that neither version is probable but
that the insurer’s version is even less probable than the ship owner’s."
This compares to Popper's case were the judge to decide about that radium
atom's decadence in 1,600 years. Popper develops the theory: for Popper, a
probability p of an outcome of a certain type is a propensity of a
repeatable experiment to produce outcomes of that type with limiting relative
frequency p.
This is what the judge must be thinking when applying the balance of
probabilities.
For instance, when we say that a coin has probability 1/2 of landing heads
when tossed, we mean that we have a repeatable experimental set-up — the
tossing set-up — that has a propensity to produce a sequence of outcomes in
which the limiting relative frequency of heads is 1/2.
With its heavy reliance on limiting relative frequency, Popper's position,
if that's the 'conceptual analysis' of 'probability' that the judge is
adopting, risks collapsing into a frequentism
However, if, on the other hand, we explicitly allow single-case
propensities, with no mention of frequencies -- and probability being just a
propensity of a repeatable experimental set-up to produce sequences of
outcomes
--this, however, creates the opposite problem to Popper's and the judge's: how
do we get the desired connection between probabilities and frequencies?
McEvoy provides a second, also interesting, example:
(2) A Tribunal is to make a decision on two issues – Issue I and Issue
II. The plaintiff must succeed on both issues to win his case. At the end
of the case, the Tribunal announces its decision orally – that while the
Tribunal finds the plaintiff has proved his case on Issue I, the Tribunal does
not find that he has proved his case on Issue II. Subsequently, as required
by law, the Tribunal sends out its written “Extended Reasons” – but in
these “Extended Reasons” the Tribunal make clear that the plaintiff fails
because the plaintiff did not succeed in proving his case on Issue I. On
appeal, and given the conflict between the Oral Decision and the subsequent “
Extended Reasons”, should the Court of Appeal rule as a matter of law: (a)
The Oral Decision stands as the Tribunal’s decision (and the subsequent “
Extended Reasons” are without any legal effect).
(b) The “Extended Reasons” stand as the Tribunal’s decision (and the
prior Oral Decision is without any legal effect) . (c) Given the conflict
between them, neither the Oral Decision nor the “Extended Reasons” stand
as the Tribunal’s decision i.e. neither is with any legal effect. My
contention is that the conclusion we should reach here (likewise) cannot be
decided by mere “conceptual analysis” of any relevant notion (such as “res
judicata”). It depends instead on understanding the character of the problem
at
issue and the relative merits of the possible solutions (a) (b) or (c)."
Well 'res judicata' (or RJ for short) is a Hartian defeasible concept par
excellence, and various conceptual analyses are logically possible.
(a) There are VERY obvious exceptions to res judicata that allow a party to
attack the validity of the original judgment, even outside of appeals.
These exceptions—usually called collateral attacks—are typically based on
procedural or jurisdictional issues, based not on the wisdom of the earlier
court's decision but its authority or on the competence of the earlier court
to issue that decision.
(b) RJ may not apply either in cases involving the reservation. If a
litigant files suit in federal court, and that court stays proceedings to allow
a state court to consider the questions of state law, the litigant may
inform the state court that he reserves any federal-law issues in the action
for
federal court. If he makes such a reservation, RJ would not bar him from
returning the case to federal court at conclusion of action in state court.
(c) RJ may be avoided if claimant was not afforded a full and fair
opportunity to litigate the issue decided by a state court.
(d) RJ may not apply if consent (or tacit agreement) is justification for
splitting a claim. If plaintiff splits a claim in the course of a suit for
special or justifiable reasons for doing so, a judgment in that action may
not have the usual consequence of extinguishing the entire claim.
McEvoy concludes: "My central contention is that when these substantive
merits"
-- rather than what he takes to be 'definitional', 'analytic', vacuous,
conceptual merits --
"are understood we will best understand why these points of law were
decided as they were. And “conceptual analysis” has next to nothing to do with
it: a Popperian approach to understanding legal reasoning is right because
Popper’s theory of knowledge is right."
with the proviso of the finality clause that Popper denies by titling one
of his essays "Endless quest".
For Popper, all life was problem solving, where the iteration of a problem
situation PS1 leads to PS2 which leads to PS3, and so ad infinitum. So a
problem-solving approach to law must take this important proviso that seems
to be anti-Popperian in nature. And if it's anti-Popperian in nature, one
wonders how W3 (das dritte Reich -- also Popperian) fits in.
McEvoy concludes:
"So, if you are willing, you can be the judge: have a think as to which is
best in I and II – (a) (b) or (c)? And, while thinking about that, perhaps
also ask yourself how far any kind of “conceptual analysis” gets you here?"
Well, by the same token, we may ask ourselves where it GOT Socrates. He was
sentenced to death because (inter alia) he would approach important
Athenian judges in the agora and ask them -- the cheek! -- for a conceptual
analysis of 'justice'!
Grice has it right when he discusses Thrasymachus's and Socrates's
divergence as to what 'the just' is -- Grice ends being a neo-Socrates, while
his
student R. Nozick is derogatorily termed a neo-Thrasymachus.
Thrasymachus is noted for his unabashed, even reckless, defence of his
position and for his famous blush at the end of Book I of the Republic, after
Socrates has tamed him.
The meaning of Thrasymachus's blush, like that of Socrates' statement in
Book 6 of the Republic that he and Thrasymachus "have just become friends,
though we weren't even enemies before" (498c), is a source of some dispute --
in terms of conflicting implicatures.
There is a long philosophical tradition of exploring what exactly
Thrasymachus meant in Republic I, and of taking his statements as a coherent
philosophical assertion, rather than as Plato's straw man.
In Republic I, Thrasymachus violently disagreed with the outcome of
Socrates' discussion with Polemarchus about justice.
--- For Socrates thought that what 'justice' needed was a good
old-fashioned conceptual analysys alla Grice! (The Grecian Griceian).
Demanding payment before speaking, Thrasymachus claims that
"justice is the advantage of the stronger" (338c)
and that "injustice, if it is on a large enough scale, is stronger, freer,
and more masterly than justice'" (344c).
Socrates counters by forcing him to admit that there is some standard of
wise rule — Thrasymachus does claim to be able to teach such a thing — and
then arguing that this suggests a standard of justice beyond the advantage
of the stronger.
For Socrates, Thrasymachus's conceptual analysis justice "represents" the
city of Athens and its laws, alla Kelsen and Hart, and thus are in a sense
opposed to Socrates (or Grice) and to moral philosophy in general -- Grice
disallows Hart's separability thesis between the legal and moral as
'otiose', "in most cases".
As an intellectual, however, Thrasymachus shared enough with Socrates the
philosopher potentially to act to protect philosophy in the city.
Some quotes from Plato's Thrasymachus are too amusing to be missed:
338c: Ἄκουε δή, ἦ δ᾽ ὅς. φημὶ γὰρ ἐγὼ εἶναι τὸ δίκαιον
οὐκ ἄλλο τι ἢ τὸ τοῦ κρείττονος συμφέρον.
(“Listen—I say that justice is nothing other than the advantage of the
stronger.”)
340d: ἐπεὶ αὐτίκα ἰατρὸν καλεῖς σὺ τὸν ἐξαμαρτάνοντα
περὶ τοὺς κάμνοντας κατ᾽ αὐτὸ τοῦτο ὃ ἐξαμαρτάνει; ἢ
λογιστικόν, ὃς ἂν ἐν λογισμῷ ἁμαρτάνῃ, τότε ὅταν ἁμαρτάνῃ
, κατὰ ταύτην τὴν ἁμαρτίαν; ἀλλ᾽ οἶμαι λέγομεν τῷ
ῥήματι οὕτως, ὅτι ὁ ἰατρὸς ἐξήμαρτεν καὶ ὁ λογιστὴς
ἐξήμαρτεν καὶ ὁ γραμματιστής: τὸ δ᾽ οἶμαι ἕκαστος τούτων,
καθ᾽ ὅσον τοῦτ᾽ ἔστιν ὃ προσαγορεύομεν αὐτόν, οὐδέποτε
ἁμαρτάνει: ὥστε κατὰ τὸν ἀκριβῆ λόγον, ἐπειδὴ καὶ σὺ
ἀκριβολογῇ, οὐδεὶς τῶν δημιουργῶν ἁμαρτάνει.
ἐπιλειπούσης γὰρ ἐπιστήμης ὁ ἁμαρτάνων ἁμαρτάνει, ἐν ᾧ οὐκ ἔστι
δημιουργός: ὥστε δημιουργὸς ἢ σοφὸς ἢ ἄρχων οὐδεὶς
ἁμαρτάνει τότε ὅταν ἄρχων ᾖ, ἀλλὰ πᾶς γ᾽ ἂν εἴποι ὅτι ὁ
ἰατρὸς ἥμαρτεν καὶ ὁ ἄρχων ἥμαρτεν.
("Why, to take the nearest example, do you call one who is mistaken about t
he sick a physician in respect of his mistake or one who goes wrong in a
calculation a calculator when he goes wrong and in respect of this error? Yet
that is what we say literally—we say that the physician erred and the
calculator and the schoolmaster. But the truth, I take it, is, that each of
these in so far as he is that which we entitle him never errs; so that,
speaking precisely, since you are such a stickler for precision, no craftsman
errs. For it is when his knowledge abandons him that he who goes wrong goes
wrong—when he is not a craftsman. So that no craftsman, wise man, or ruler
makes a mistake then when he is a ruler, though everybody would use the
expression that the physician made a mistake and the ruler erred.")
344c: οὕτως, ὦ Σώκρατες, καὶ ἰσχυρότερον καὶ
ἐλευθεριώτερον καὶ δεσποτικώτερον ἀδικία δικαιοσύνης ἐστὶν
ἱκανῶς γιγνομένη, καὶ ὅπερ ἐξ ἀρχῆς ἔλεγον, τὸ μὲν τοῦ
κρείττονος συμφέρον τὸ δίκαιον τυγχάνει ὄν, τὸ δ᾽ ἄδικον
ἑαυτῷ λυσιτελοῦν τε καὶ συμφέρον.
("Thus, Socrates, injustice on a sufficiently large scale is a stronger,
freer, and a more masterful thing than justice, and, as I said in the
beginning, it is the advantage of the stronger that is the just, while the
unjust
is what profits man's self and is for his advantage.")
All in all, conceptual analysis remains an important element for the legal
philosopher. Grice was particularly fascinated with types of priority. He
would go as far as to allow that
-- the legal right
might take PRIORITY over
-- the moral right.
But even here, there were 'conceptual-analytic' distinctions to be made:
Grice (*pace* Hart):
"It seems to me not implausible to hold that, in respect of one or another
version of "conceptual" priority, the legal concept of 'right' is prior to
the moral concept of 'right': the moral concept is only understandable by
reference to, and perhaps is even explicitly definable in terms of, the
legal concept. But if that it
so, we [should be not debarred] from regarding the moral concept as
valuationally prior to the legal concept; the range of application of the
legal
concept _ought to be_ always determined by criteria which are couched
in terms of the moral concept" -- as Thrasymachus* could never see.
Thus Grice in discussing Plato's Republic:
"It is not made clear" to the conceptual analyst "whether the kind of
justice under discussion is legal justice, or moral justice."
"The general tenor of Thrasymachus's remarks would suggest that his concern
is with legal justice."
"Indeed, it seems not impossible that it is part of Thrasymachus's position
that there is no such thing as _moral_ justice, that the concept of moral
justice is chimerical or empty."
"When we operate as moral philosophers in the borderland between Ethics and
Legal Philosophy, one of
the salient questions which we encounter is whether there is a distinction
between moral and legal concepts and how such a distinction, if it exists,
should be characterised."
[What is justice? Fairness? Equality of opportunity? Respect for natural
rights?].
"The difference between moral and legal justice might be thought of as
lying in the fact that in the case of _moral_ justice the system of rules is to
be accepted on account of the intrinsic desirability that conduct of a
certain sort should be governed by practical rules or by practical rules of a
certain sort, where a system of rules of mere _legal_ justice rests on the
desirability of the _consequences_ of making conduct subject to rules, or
to those particular rules."
And so on.
And it's not clear where this approach alla Popper (_sans_ the 'ad
infinitum', which features notably in W3) and with its focus on 'consequences'
would fit. Somewhere, I'm sure!
Cheers,
Speranza
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