[lit-ideas] Re: Hartiana
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 18 Mar 2015 21:27:59 +0100
Just a few remarks, as a clarification of the previous discussion. The
legal contexts might be different from some practical rather than
theoretical reasons. It would seem that the legal tradition in the UK
permits the judge to be a "willy-nilly legislator when the text of the law
runs out." Thus an experienced judge can choose between two plausible
interpretations of the letter of the law the one that seems more reasonable
to apply to the case at hand. Here on the other hand judges, at least on
the lower levels, tend to be inexperienced lawyers trying to get some
experience before their start their own practice, and often employed
through various connections. Seeing that these judges are both
inexperienced and vulnerable to various influences, it may well be best to
keep them strictly to a literal interpretation of the law. Perhaps the
things are different in the UK. I have some acquaintance with the UK legal
system through my translating work, as it were.
O.K.
On Wed, Mar 18, 2015 at 4:26 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
wrote:
> In the hands of "legal philosophers", 'legal philosophy' is effectively a
> form of 'philosophy-lite', that takes law-related issues as its
> subject-matter but then treats these in a relatively shallow and
> superficial way.
>
> It cannot help but frame issues that derive from deeper, more general
> problems [such as the extent to which knowledge is best viewed as
> "conceptual", "empirical", "conventionalistic", "naturalistic" *etc*. -
> the Popperian view, that knowledge is best viewed as a product of
> problem-solving, has not made it yet into standard 'legal philosophy', such
> is the backwardness of 'legal philosophy']. But 'legal philosophers' are
> then inadequate to the task of addressing these issues as a great
> philosopher might.
>
> We may speak of great philosophers of law if we wish but we must be clear
> that no truly great philosopher was ever a mere philosopher of law.
> Equally, we may speak of great physicists of phlogiston but no truly great
> physicist was ever merely a physicist of phlogiston.
>
> Hart's "Concept of Law" depends on a "rule of recognition" that is
> circular to the point of being empty and it is also an epistemic fiction.
> Rather than refute this kind of fundamental criticism, all JLS succeeds in
> showing is how, in very small and relatively shallow field, Hart's "The
> Concept of Law" can still be taught as some kind of preeminent text. Yet,
> even if we strip away the fictitious "rule of recognition", we are left
> with nothing very insightful as to what kind of cognitive processes are
> involved in legal thought [to do that you need to study *legal problems*],
> and most of what is accurate enough in the book is simply a watered-down
> version of ideas better dealt with by other philosophers.
>
> Imagine a book "The Concept of Science" which claimed there is a kind of
> "rule of recognition" for what constitutes science: in effect, this is what
> Ayer and Strawson *et al* claim, and by this "rule of recognition" they
> mean 'valid inductive procedures'. It turns out the validity of Strawson's
> and Ayer's inductive procedures turns on what is accepted by scientists,
> just as Hart's "rule of recognition" turns out to depend on what is
> recognised as the "rule" by lawyers. Both theories are fictions,
> unexplanatory and circular - they have, however, hoodwinked many fairly
> weak and uncritical minds.
>
> That's the real story: twentieth century academic philosophy in Britain
> was made up of small, insular groups, most of whom were "scientifically
> illiterate" and predisposed to endless linguistic analysis to very little
> end - they were also self-selecting to an unhealthy degree. Among them
> there was little genuine profound interest in philosophy in its great
> scientifically-informed sense and much more interest in how to make a
> philosophical career out of linguistic minutiae - as Bryan Magee explains,
> in his "Confessions of a Philosopher", there is much more genuine and
> profound interest in philosophy outside of university academic departments
> than there is within them.
>
> This real story is part of the explanation for the shallow and superficial
> and 'let's-carry-on-regardless' approach that was taken to Popper's work by
> the vast majority of academic philosophers (most of whom have read next to
> nothing of it, and certainly not made a careful study of it). While I
> understand that university departments were very antipathetic to Hume for
> many decades after he wrote, I cannot help read JLS' long enconiums re Hart
> as being part of this 'let's-carry-on-regardless' approach.
>
> Dnl
>
>
> On Wednesday, 18 March 2015, 10:55, "dmarc-noreply@xxxxxxxxxxxxx" <
> dmarc-noreply@xxxxxxxxxxxxx> wrote:
>
>
> My last post today!
>
> In a message dated 3/18/2015 6:09:33 A.M. Eastern Daylight Time,
> omarkusto@xxxxxxxxx writes: "Let's say that we had a conference and I
> introduced JL
> by saying "This is our man for implicatures." The connotations of this
> would
> vary with the context; if the conference were on Grice, it might well be
> taken as a compliment. (Even if not so intended). If the conference were
> on
> metaphysics, it might not be taken as particularly complimentary. But
> since
> JL is "our man for implicatures," I would expect him to accept that
> truthful description whether it is complimentary or not.
>
> Yes, I would.
>
> But again, let us be reminded that the original utterance was not about
> Hart, whom most would know, but Dr Puddle.
>
> i. Meet Dr. Puddle, our man in legal philosophy.
>
> With Hart it might ALL be different. Surely, it would be rude for a
> member
> of the Faculty of Law at Oxford to describe Hart as "our man in legal
> philosophy", and I wonder if Hart was ever thus described.
>
> A more colloquial example would be J. L. Austin referring to Hart as "our
> man in legal philosophy". "Legal philosophy" is not a phrase J. L. Austin
> would use. After all, Hart was professor of Jurisprudence, and there
> might
> be a difference, although the talk of the town (if not gown) was that for
> a
> historical first, it was a PHILOSOPHER (and a good one at that) that was
> appointed as professor of Jurisprudence.
>
> We are considering.
>
> ii. Hart as a philosopher.
>
> iii. Hart as a LEGAL philosopher.
>
> and how it is Hart's strength as a PHILOSOPHER (rather than perhaps
> lawyer)
> that makes him a good legal philosopher.
>
> As a student at Oxford Hart studied only "Greats" (i.e., classics,
> ancient
> history, and PHILOSOPHY) -- not law. He had to take further legal
> examinations to be called to the bar -- where he practised law in London
> from 1932
> to 1940.
>
> After the war, there was transition from practicing lawyer and civil
> servant to Oxford philosophy don.
>
> When Hart returned to Oxford in 1945 and took up a position as a
> philosophy
> don, he did so after an interval of sixteen years, armed with only an
> undergraduate degree in philosophy.
>
> This is a testimony to the regard in which Hart had been held in Oxford
> as
> a student.
>
> Hart was a philosophy don at Oxford for seven long years, from 1945 to
> 1952
> -- the heyday of ordinary language philosophy.
>
> During this period Hart typically published relatively little. As Warnock
> recalls ("Saturday mornings") ordinary language philosophers felt PROUD
> about NOT publishing: parochialism as a virtue.
>
> As a philosophy don, Hart published only three essays and two reviews,
> only two of which were directly related to law: the essay on "The
> ascription of
> responsibility and rights" (Aristotelian Society) where he borrows (but
> never returns) 'defeasible' from property law, and a review of Jerome
> Frank,
> "Law and the modern mind" (1949), for "Mind".
>
> When Goodhart, resigned as Chair of Jurisprudence in 1952, it was largely
> on the strength of Hart’s reputation for cleverness -- and his connection
> with J. L. Austin, and other influential Oxford philosophers -- that Hart
> was
> appointed to replace him.
>
> This raised eyebrows among the Oxford Law Faculty, with whom Hart had
> enjoyed little contact.
>
> “It’s Goodhart without the good” is how a prevailing sentiment was
> expressed.
>
> By contrast, Hart’s appointment was a source of pride to the Oxford
> PHILOSOPHICAL community, which saw Hart as ONE OF THEIR OWN and welcomed
> the
> opportunity to extend their influence.
>
> Quite apart from his high intellectual regard for Hart, J. L. Austin’s
> thinking was shaped by a belief that only a ‘real’ PHILOSOPHER could
> elevate
> the Chair of Jurisprudence to a level of any intellectual credibility.
>
> This is strikingly reflected in J. L. Austin's note of congratulation on
> Hart’s ultimate election to the Chair of Jurisrudence:
>
> ‘Hart,
> It is splendid to see the empire of PHILOSOPHY [emphasis Speranza's]
> annex
> another province in this way — not to mention the good you’re going to do
> them.
> Austin’
>
> -- where 'them' is not 'us'.
>
> One can imagine how members of the Law Faculty must have felt about this
> colonisation, not to mention the philosophical triumphalism with which it
> was
> accomplished.
>
> For it was not only J. L. Austin’s letter which illustrates the Oxford
> ordinary language philosophers’ sense of superiority.
>
> Magdalen Fellow Kurt Baier found it "remarkable that lawyers can be so
> perceptive" -- the implication being complex: 'lawyers' is 'them', not
> 'us',
> but since Hart is a lawyer ("Once a lawyer, allways a lawyer"), Baier's
> remark on the remarkability is pretty rude.
>
> (Baier, unlike J. L. Austin, who was from Lancaster, was from Vienna,
> Austria-Hungary, where he lived till 1938, so we must allow for some
> cross-cultural variance in the expression of stuff).
>
> R. B. Braithwaite wrote from Cambridge (no less!) to celebrate Hart’s ‘
> infiltration, or was
> it assault?’.
>
> This could also be taken as 'rude' but then it is from Cambridge --
> Oxford's competition.
>
> Braithwaite opined that "Jurisprudence is quite futile unless it is
> treated
> as a branch of philosophy. But", he goes on to wonder, "will you persuade
> the lawyers?".
>
> Hart took the answer as rhetorical and, as an Oxonian, rude, seeing that
> "once a lawyer, allways a lawyer", plus the adage that it is VERY EASY to
> persuade oneself.
>
> Professor Ryle was "glad" about Hart's appointment as Professor of
> Jurisprudence, "for the sake of the students who want to think" -- where,
> knowing
> Ryle, the æquivocatio is on 'want': students who WILL to think vs.
> students
> who NEED to think.
>
> All in all, there was a marked, shall we say, difference of *tone* back
> in
> the day, between the philosophers and the lawyers -- and you can see how
> Hart might have felt being _both_.
>
> While the philosophers were warm and exultant, the lawyers were merely
> polite, if not downright rude or badly comical (the toilet graffito,
> "It's
> Goodhart without the good").
>
> There were exceptions, however.
>
> Hart’s closest FRIEND on the Law Faculty, lawyer A.M. Honoré, wrote a
> (granted) unsigned notice for a university newspaper welcoming Hart's
> appointment. (cfr. Neil Duxbury, English Jurisprudence Between Austin and
> Hart, Va.
> L. Rev., arguing that English jurisprudence between Austin and Hart was
> largely inert) and W. L. Twining, "Academic Law and Legal Philosophy: The
> Significance of H.L.A. Hart" in the Law Q. Rev., arguing for same).
>
> Still another lawyer, R.V. Heuston, wrote Hart to tell him he looked
> forward to Hart's providing a ‘town planning scheme’ for the
> "intellectual slum
> of English Jurisprudence" where there is, granted, no reference to
> _philosophy_ as such.
>
> In retrospect, Heuston’s remark was prophetic, for Hart’s appointment
> became a significant turning point in Oxonian legal thought.
>
> Hart revived the largely moribund discipline of English jurisprudence and
> restored it to a prominent position.
>
> Indeed, over the next several decades, Hart managed, with the help of a
> talented group of students and colleagues, including Ronald Dworkin, John
> Finnis, Ruth Gavison, David Lyons, Neil McCormick, Herbert Morris,
> Joseph Raz, and Robert Summers, to launch a minor intellectual revolution
> in the LEGAL philosophy, which quickly spread beyond its original borders
> and integrated parts of both academic law and analytic PHILOSOPHY in a
> manner now
> largely taken for granted, although not without its influential critics.
> (I'm thinking of R. Poster, "The problematics of moral and legal theory",
> who, perhaps as old Cato did, back in 155 B. C., upon hearing Carneades
> in the
> Roman senate, criticises the influence of philosophers on legal
> scholarship).
>
> Cheers,
>
> Speranza
>
>
>
>
>
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