[lit-ideas] Re: Hartiana
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Tue, 17 Mar 2015 14:40:19 +0100
If it is not a tautology (or contradiction) to say that a particular law is
just, neither is it a tautology (or contradiction) to say that all law is
just. However, the truth value of the latter statement may be difficult to
assess, and one might want to begin by asking if there is such a thing as
"law" or if there are only different laws. Yet it seems possible to
evaluate whole legal systems as being, if not utterly then predominantly or
to a crucial extent unjust. (The Nazi and Stalinist legal systems might be
candidates for such an evaluation, among others.)
On another note, it seems that we have introduced a new mode of
philosophical analysis, namely biographical analysis. I am not convinced
that our understanding of justice will be greatly enhanced by knowing a lot
of biographical detail about Hart. Besides, I suspect that the biographies
of most academic philosophers are rather tedious, with one or two
exceptions like Russell who had plenty of non-academic interests.
O.K.
On Tue, Mar 17, 2015 at 1:22 PM, Redacted sender Jlsperanza@xxxxxxx for
DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote:
> 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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