[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Tue, 17 Mar 2015 08:22:42 -0400
In a message dated 3/17/2015 4:04:17 A.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes:
"Law is just" is not a tautology, since laws can be unjust.
It all depends on the analysis, conceptual analysis, that is. This is a
field for LEGAL PHILOSOPHERS (or philosophers simpliciter, since 'philosophy,
like virtue, is entire', and to characterise Hart as a legal philosopher
IMPLICATES he's not a good legal philosopher).
Oddly, this applies to a field of 'conceptual analysis', the analysis of
'legal reasoning'. While many see this as merely 'playing by the rules', a
judge can deem a rule not a rule, especially if it's morally odious.
Thus, a judge in a ‘wicked’ legal system where the law on some issue is so
morally odious that, all things considered, the judge should not decide
the case according to the law at all, but rather should refuse to apply the
law
This particular scenario is discussed by Hart 1958; Hart 1994, chapter 9,
section 3. This possibility is also noted by Dworkin (1986, chapter 3, 101–
108) in discussing whether the Nazis had law.
O. K.:
>"Law is just" is not a tautology, since laws can be unjust.
I would distinguish between:
i. Law is just. (the title of Hart's book is, "The concept of law", not the
concept of "the law", but if this is a parody on Ryle, "The concept of
mind", the implicature might be that "the concept of the mind" sounds clumsy).
ii. The law is just.
iii. This law is just.
My favourite is (iii), since it involves one of my favourite
demonstratives, alla Kaplan.
The language of Kaplan’s logic is that of modal first-order predicate logic
with tense operators and other additions. The additions include a
distinguished predicate ‘Exists’, a distinguished binary predicate ‘Located’,
a
distinguished constant ‘I’, a distinguished constant ‘Here’, and a
function-term ‘dthat’.
So we should add the Kaplanian:
iv. Dhat law is just.
-- or unjust for that matter.
My reference to the alleged tautology (or contradiction, for Hart)
expressed in the terse Latin adage,
v. Lex iniusta non est lex.
was meant to hightlight Hart’s characterizations of so-called natural law
which some see as notoriously inadequate, notaby by Norman Kretzmann.
The locus classicus is:
Norman Kretzmann,
"Lex Iniusta Non Est Lex":
subtitled:
"Laws on Trial in Aquinas’ Court of Conscience."
-- 33 AM. J. JURIS. 99, 101 n.5.
-- but surely Aquinas's source is Augustine.
Kretzmann, who wrote the entry on the history of semantics for Edwards's
Encyclopedia of Philosophy, and thus, can be deemed a lover of conceptual
analysis like Hart was, explains that, alas, Hart mischaracterizes both saints
Augustine and Aquinas -- only Hart would call saint neither.
The point is also treated by Finnis and by C. Orrego in his "H.L.A. Hart’s
Understanding of Classical Natural Law Theory", which, being so critical of
Hart, one is surprised it got published in the "Oxford J. Leg. Stud."
Hart allegedly misunderstood classical "natural" law theory in such a way
that it warranted the suspicion that
he did not have a first-hand acquaintance with that theory.
Which seems naïf in view that Hart's only academic qualification was a BA
(later MA Oxon Lit. Hum.) and you have to admit that the classics -- except
perhaps Carneades, who received his share of odious criticism for it --
were all "into" natural law.
Twining naturally tried to defend Hart, as he should: "Hart has never
claimed to be primarily an historian of ideas". The implicature being that when
you engage in conceptual analysis you cannot engage _at the same time_ (as
Isaiah Berlin thought he did) in the history of ideas. As a result of
Hart's and Berlin's polemics, indeed, Oxford (metaphorically) felt that she
needed a special chair and the Chair of the History of Ideas was instituted.
The primacy of Hart over Berlin can be seen in that the professorship in
the history of ideas (while named after Berlin) is only a visiting one.
Twining's comment on Hart NOT being a historian of ideas comes from his
review of a book by Lloyd, where he expresses surprise "at the amount and
difficulty of the philosophy which Lloyd expects his addressees to absorb,
when your average legal philosopher, in his teaching role, never averagely
dares to do more overt philosophy than expound Aristotle on justice, Hobbes and
Hume on the nastiness of life without law, and _parts_ of Aquinas on
natural law.
Cheers,
Speranza
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