[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 19 Mar 2015 22:04:41 -0400
Hart's rule of recognition (one variant) is easy enough to recite:
"Whatever the Queen in Parliament enacts is law."
But McEvoy finds it falsifiable and falsified -- not his terms. _His_
terms are other: The rule of recognition on which "Concept of Law" depends
is
"is circular to the point of being empty and it is also an epistemic
fiction... 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."
-- whereas, naïf me I see the recognition rule not as 'circular' but as
analytic' and not as 'fiction' but 'philosophical' (philosophers don't have to
deal with facts versus fictions).
On a different note, there's The Fisheries Act. It regulates whaling.
Geary objected:
"A whale is not a fish."
This, for Hart, is redundant, and makes NOT The Fisheries Act wrong or in
need of 'change' of revision.
(Geary proposes a sub-clause: "A whale is not a fish.").
There's recognition, adjudication, and _change_ -- of rule or law. The
latter is interesting. Because while we colloquially can say that we have
changed the law -- it is perhaps best analytically, to say that we have
transferred from Law 1 to Law 2. We do speak of a 'changed law', but it is a
'different' law (i.e. a new law from which the old law was changed). And I'm
using 'different' alla McEvoy:
"Equality is about treating what is different differently".
Hart refers to English as displaying 'open texture'. He also speaks, by
derivation, of 'the open texture of law' -- a phrase, 'open texture', which
Hart borrows from Waismann (-- or 'the Wise man', literally) -- but never
returns.
In Waismann's work, "open texture" refers to the potential vagueness of
words under extreme (hypothetical) circumstances.
Hart's use of the expression is slightly different -- there is perhaps
more texture to it than openness.
In fact, it has been claimed, hyperbolically, that Hart's opus has been
wholly misunderstood because those differences have been underestimated.
The moral seems to be that Hart should not be read as basing his argument
for judicial discretion merely on the nature of, say, the English language.
Primarily, what Hart is doing is putting forward a policy argument for why
rules should be applied in a way which would require that discretion.
"Natural languages like English are…irreducibly open-textured" (Concept of
Law), he stresses.
And because of the vagueness and ambiguity of language, legal norms will
necessarily have or inherit this open texture.
Because of the open texture of the language in which law is expressed (or
the laws are expressed, if you want to be analytic) there will be a core of
settledness and a penumbra of unsettledness in EVERY legal rule -- "that
*matters*, adds Geary.
This is true even of the rule of recognition, that McEvoy finds so
problematic.
Hard cases involve the penumbra of unsettledness, while easy cases involve
the core of settledness
However, and this is Hart the "positivist", even within the area of open
texture, rules still provide standards determinate enough to limit, andnot
exclude, judicial discretion.
Clever, no?
Cheers,
Speranza
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