[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 
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 
the character of possible solutions (c) the  relative merits of the 
possible solutions. In the light of (c) especially, we  can better understand 
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 -- 

"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!

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. 
"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. 
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  
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 
--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 
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 
 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  
-- 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  
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 
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 
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  
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  
"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!

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