[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 19 Mar 2015 07:43:51 -0400
In a message dated 3/19/2015 4:39:59 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes:
That the measure or standard is different, and not merely that pregnant
women are protected against being treated worse than non-pregnant women,
follows from the European Court ruling in Dekker.
For the record, the European Court of Justice decided in
Dekker v Stichting Vormingscentrum Voor Jone Volwassen (VJV-Centrum) Plus
(ECR I-3941)
that pregnancy discrimination was sex [or gender] discrimination without
any requirement for comparing this unfavourable treatment to a man [or male].
Interestingly, Dekker v Stichting Vormingscentrum Voor Jone Volwassen
(VJV-Centrum) Plus
reaffirmed this position in
Webb v EMO Air Cargo (No 2)
where a female had been dismissed because she had attempted to take
pregnancy leave, but had not disclosed this to her employer when hired.
-- not even via disimplicature.
Cfr. Harnish:
A: I didn't know you were pregnant.
B: You still don't.
(and the complications of the case: why is it that we, ceteris paribus,
take the 'truth' clause to be rejected (meaning "I'm not pregnant") rather
than the alleged 'justification' clause: "I am pregnant, but you are not
exactly justified in believing it!").
As well as a dismissal, a failure to RENEW a fixed term contract may also
be discrimination (EC I-06915 (C-438/99))
Furthermore, during any period of pregnancy or maternity leave there may
be no detriment or dismissal in connection with a period of sickness. This
is affirmed by
Brown v Rentokil Ltd.
A female is also allowed to shorten her maternity leave and return to work
when she becomes pregnant again to get the second period of pregnancy,
even though she is not fully able to carry out all her normal job functions.
This is affirmed by
Busch v Klinikum Neustadt
Women who are pregnant are protected at job interviews (_sans_
implicature).
This is affirmed in
Tele Danmark A/S v Handels-Og Kontorfunktionaerernes Forbund I Danmark (HK)
acting on behalf of Brandt-Nielsen
where a female has been held to be NOT AT FAULT for NOT telling an
employer she was pregnant while being interviewed for a job, despite knowing
she
was pregnant.
(where 'knowing' fits both Plato's 'justified true belief' and a more
causal, less restrictive 'conceptual analysis').
Oddly, I've noticed that in current conversational practice, a potential
father may say, "I'm pregnant", or (as in some majestic plural, "We're
pregnant", with the attending implicature being that "I will accompany my
wife/this potential mother in her pregnancy" -- but found to be in poor taste
(ps
after references, below), and too semantic to get pragmatic approval.
Mrs. Hart, incidentally, was pregnant three times. But talking of
discrimination, Grice once said that at Oxford they never care about rules
(like
'duties' -- 'stuffy' -- 'except college rules or rules of games' -- marginal
note to his second book, "Conception of Value"), and Hart's resignation for
his post as principal of Hertford has to do with this.
It is one of those stages of Hart's life that made Thomas Nagel (who
incidentally, studied philosophy under Grice at St. John's) whisper, "I wish
he
had burnt his diaries", 'he' meaning Hart.
After serving many years within New College, Hart applied to be elected
Principal of Hertford.
He lived in a beautiful house and did not want to move to the Principal's
lodgings within Hertford.
He raised this issue only to be assured that it would not create a
difficulty.
However, later Hart was solemnly told that the College constitution
obliged the Principal to live within the College, residing outside "only in
cases
of emergency" -- there has to be a 'defeasible' clause.
On this footing Hart, with a little encouragement, withdrew.
Sadly, years later, when the Chancellor of Oxford University, Harold
Macmillan, was sitting next to Hart at a College feast, they fell into talk
about Macmillan's role as Visitor to Hertford College.
Macmillan disclosed that he had only had one problem.
It concerned a proposal of the College to appoint, as Principal of the
College, a lawyer. Macmillan did not mentioned names (He did not know the name
of the lawyer -- who was not C. of E. (as it were)).
What Macmillan said to Hart was that the appointing committee had not
realised this fact and was concerned, upon the discovery, that it would not
look
good to turn down "a perfectly reputable man because he was [not C. of E.,
as it were]".
Yet "luckily" (was Macmillan's word) they discovered this requirement of
the College constitution that the Principal should live in the lodgings.
So they used this as the "excuse" to turn the candidate away, without
mentioning his religion -- and not acceptance of the 39 articles of faith.
Allegedly, Macmillan did not know that Hart was the person of whom he was
speaking.
Hart did not embarrass Macmillan by mentioning names (indeed his own, i.e.
Hart's own).
He said later, on telling the story, that it would have been too painful to
have done so. Hypocrisy triumphed, as when Grice declared that "I can be
committed to the 39 articles without knowing what they are" (He is providing
an analysis of 'commit').
On a different note, McEvoy invites us to compare three books, Ryle's
Concept of Mind, Hart's Concept of Law, and an imaginary (by Strawson),
"Concept
of Science"
McEvoy: "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."
While the above is true, it may do to do a little research into
'philosophy of science' as practiced at Oxford. While that chapter in
Strawson's
Introduction to Logical Theory is certainly crucial, there's more to philosophy
of science at Oxford than it. And more to a Popperian approach, too. I'm
not sure I would see Strawson as _the philosopher of science_ alla Ordinary
Language Oxford Philosophy -- but then it may well be that when the courses
on philosophy of science were instituted, the heyday of ordinary language
philosophy were gone. My favourite philosopher of science seems to me Mrs.
Hampshire (aka Nancy Cartwright) but then she learned with all the proper
philosophers! -- and my favourite of her essays seems to be "How the laws of
physics lie".
But perhaps the best candidate for "Oxford school" philosopher of science
should be Toulmin, who was appointed University Lecturer in Philosophy of
Science at Oxford University from 1949 to 1954, during which period he wrote
the brilliant "The Philosophy of Science".
Indeed, Hart passed his understanding of deep philosophical problems to
whomever was prepared to receive
it, notably Toulmin -- while granting that Hart worked "in the borderland
between jurisprudence and philosophy".
"The topic of exceptions or conditions of rebuttal," Toulmin writes, "has
been discussed by Prof. H.
L. A. Hart under the title of ‘defeasibility’" (Toulmin, Uses of
Argument).
Indeed, one can see in Hart all of the depth and clarity of understanding
of argument which made Toulmin famous in his "Uses of Argument". In Toulmin,
as in Hart,, the linguistic importance of "unless" is the springboard.
The notion of defeasibility is inextricably tied up with an adversarial
system of reasoning -- as in Einstein responding to his critic in that famous
Oxford colloquium --. That was the point that Toulmin, and
make on the subject of argumentation and dialectic.
As Toulmin shows, properly characterized, all kinds of reasoning are
inherently adversarial, including reasoning in epistemology, science, and
decision-making -- even if Grice wished for a diagogic approach that would
bring
an eirenic effect.
Arguments such as Hart makes in "The Concept of Law" and that Toulmin
sketch in "Uses of Argument" do not have to be demonstrative.
Indeed, Toulmin goes on to permit REVISION of defeasible rules, as does
Law.
McEvoy concludes his post against Hart's conceptual analytic approach to
legal philosophy on a GENERAL note about linguistic philosophy in general --
the philosophy of linguistic minutiae --:
"That's the real story: twentieth century academic philosophy in [Oxford]
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."
Well, Oxford is perhaps different, in that there's a whole Sub-Faculty!
(Now a whole Faculty!)
The Faculty of Philosophy, University of Oxford, was only recently founded.
Previously it was a "sub-faculty".
The phrase is Kantian in origin (vide Kantian on the subfaculties of
practical reason).
For years, it was the Sub-Faculty of Philosophy within the Faculty of
Literae Humaniores (which had been founded in 1913 (one year before the Great
War, which was a good thing, seeing that with a War, Oxford had other
priorities, and was indeed closed).
Despite this 1913 date, the teaching of philosophy at Oxford dates back,
of course to mediaeval times.
The Faculty of Philosophy is now part of Oxford's Humanities Division --
where "Humanities" is new lingo for "Literae Humaniores".
The Faculty of Philosphy is ranked first in the UK by The Times.
McEvoy concludes:
"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 [the] enconiums re Hart as
being part of this 'let's-carry-on-regardless' approach."
With the difference that neither Popper nor Hume ever taught at Oxford,
while Hart spent his life (except a few years as a junior at the Chancery in
London).
Interestingly, 'let's-carry-on-regardless' is a complex expression, formed
up by 'carry on', which has now been colloquially prefixed by 'and' (after
'keep calm and carry on').
A notable examples expands on the rather neutral 'carry on':
i. Keep Spending and Carry On Shopping.
Cheers,
Speranza
References:
Hart, H.L.A. "The ascription of responsibility and rights," in A. Flew,
ed., Logic and Language, Blackwell, Originally Proceedings of the Aristotelian
Society..
Hart, H. L. A. "A logician’s fairy tale," Philosophical Review 60.
Hart, H. L. A. "Are there any natural rights?" Philosophical Review 64
Hart, H. L. A. The Concept of Law, Oxford.
Hart, H.L. A. Punishment and Responsibility, Oxford.
Hart, H. L. A. Essays in Jurisprudence and Philosophy, Oxford.
Toulmin, S. The Philosophy of Science.
Toulmin, S. The Place of Reason in Ethics.
Toulmin, S. The Uses of Argument.
Toulim, S., A. Janik, and R. Rieke. Introduction to Reasoning, MacMillan,
1984.
* On "We're pregnant" uttered by a male -- and the criticism it receives.
Pregnancy is a lot of things: A joy, a pain, a blessing, a curse. One thing
it's literally not is, allegedly, simultaneously experienced physically
by the male who got the female pregnant.
When a partner says "We're pregnant" it is supposed to implicate sympathy
and unity, a sign that dudes finally get it — you both made this baby, and
he is so committed to the child-rearing that will ensue that he's willing to
completely violate the "semantic" rules of biology to prove it and abide
by 'implicature'.
Not everything that "basically means" something means the same something
you think it does.
This is allegedly one of those things.
So when a male says "We're pregnant", implicating "We're having a baby," or
"We're expecting", cancellation of implicature can become a trick.
It is alleged that if a male says "We're Pregnant!" and then literally
turns around and mainlines heroin while eating deli turkey, sushi, doing shots,
and punching himself in the gut with no risk to the fetus, he isn't
pregnant.
This is not said to diminish a male partner's experience during his female
partner's pregnancy or to suggest it doesn't matter, doesn't affect him,
doesn't vastly alter his life, sense of himself, understanding of the world,
feelings about the universe, his relationships, identity and all the things
that having babies come into the world does for all of us. It's an
enormously important role.
But it's a supporting role, ultimately, and there's allegedly something a
smidge glommy about a male's well-intentioned but entitled, oversteppy
desire to call an experience unique to females his own by virtue of being
there
when it happens.
Grice one said that "Let's have lunch together sometime" MEANS "I hope we
never will"
Similarly, it is alleged "We're pregnant" (as uttered by a male) means
"We're having a baby."
It allegedly means, "As a dad, I'm excited as hell." It means, "This is
actually happening." But most importantly, when a male says "We're pregnant,"
he's allegedly letting everyone know that even though he's not carrying
the baby, he's fully invested.
The literally not-pregnant guy may say, "If you have a supportive and
doting partner, is this really the hill you want to die on while quibbling over
semantics?" -- Exactly, "it's the pragmatics, stupid," as Aunt Matilda used
to say.
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