[lit-ideas] Re: Hartiana

  • From: Omar Kusturica <omarkusto@xxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Fri, 20 Mar 2015 12:42:45 +0100

Perhaps Grice would have wanted to be introduced as "our man at
everything." However, the notion that, if one is good at philosophy, one is
equally good at metaphysics, aesthetics, philosophy of science, philosophy
of law, and whatever comes to mind under the heading 'philosophy of such
and such' strikes me as a phantasy, and a hybristic one. Even Bertrand
Russell, who certainly was very broadly educated - honestly probably more
so than Grice - acknowledged that he didn't know much about aesthetics, and
didn't publish on it.

O.K.

On Fri, Mar 20, 2015 at 10:36 AM, Redacted sender Jlsperanza@xxxxxxx for
DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote:

> In a message dated 3/20/2015 4:35:02 A.M. Eastern Daylight Time,
> donalmcevoyuk@xxxxxxxxxxx writes:
> As the Dekker example shows, the law  arrives at the point where two
> sections with the same essential wording are  nevertheless interpreted so
> that
> they have very different effects: this cannot  be the upshot of 'words on a
> page' or 'what words mean' but is the upshot of a  problem-solving
> approach.
>
> 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].
>
> -- which leads us back perhaps  to Hart on 'approximative equality' (as he
> compares it to inequality) -- and its  role as the source of 'legal and
> moral obligation' _sic_ in that order (In other  sections of "Concept of
> Law",
> Hart goes back to the more 'normal' ordering:  'moral and legal'.
>
> Hart discussion of 'approximative equality' seems to be based on his
> favourite example of strength (even the strongest loses his strength when
> he
> sleeps, is one of his observations), and interestingly, makes use of the
> 'nature' vs. 'artifice' distinction -- which I'm sorry to find Grice
> HATED.
>
> The nature-artifice distinction dates back to Graeco-Roman times, and Hart
> and Grice (Hart was Grice's senior) are interested in different aspects of
> it.  Grice is into 'signs', and if laws are made up of words, they are made
> up of  signs, one would think -- they are 'coercive' -- "Law as coercive
> orders"  is section II of chapter II ("Laws, commands, and orders") in
> Hart's
> book. But  Grice (in 1948, "Meaning") that Hart quotes in his 1952 review
> of
> Holloway (one  of the few philosophical publications -- rather than
> specifically LEGAL  philosophical -- he wrote before his appointment as
> chair of
> jurisprudence)  says he finds the nature vs. artifice distinction
> 'artificial'.
>
> --- GRICE INTERLUDE:
> ------ Grice thinks that while Hobbes is right in the _spirit_ of what he
> writes when Hobbes speaks of signs being either 'natural' or 'artificial'
> (and  even 'conventional') when it comes to Grice's use of 'mean', he finds
> that he  does not want to state -- as Hobbes and Peirce do -- that words
> ARE
> signs -- and  cfr. Hart's title of his review: "Words and Signs" -- He opts
> for 'natural' vs.  'non-natural', seeing that one may mean in a non-natural
> way which is yet not  'conventional' (and thus 'artificial').
>
> The use Hart makes of the nature/artifice distinction is different: he
> speaks of of it in terms of this 'approximative equality', which seems to
> appear  as the source of both legal and moral obligation when it comes to
> redress
> (if  that's the problem) an inequality which may be natural by an
> approximative which  is artificial and conventional. Since this is liable
> to get the
> WRONG  interpretation, I should quote Hart verbatim:
>
> He is talking of a 'system' of 'reciprocal' (nice word!) 'rights and
> obligations'. "Its effect is to create among individuals a moral and, IN A
> SENSE
> [emphasis Speranza's] EQUALITY to offset [redress?] the inequalities [_sic_
>  plural] of nature."
>
> Hart's "of nature" may connect with his rather minimalist view of 'natural
> law' which was so maximalist in CICERO: "Surely we cannot think that Athens
> and  Rome have different laws" --. Cicero is defending natural law as
> being, by  necessity, one. And the mention of Athens is particularly apt
> when
> Grice will  later claim a direct descent of Oxonian dialectic from
> Athenian (if
> not Roman)  dialectic.
>
> On the other hand, what were the Stichting Vormingscentrum Voor Jone
> Volwassen (VJV-Centrum Plus) thinking? It does sound pretty foreign -- and
> does
> make you agree with Geary (whose brother lives in Denmark) that it's
> sometimes  easy to get to the spirit of the law skipping the Dutch letter
> altogether!
>
> (cfr. if I read McEvoy aright, what a law SAYS and what uses it may be put
> to -- via implication: "before Dekker prompted a special provision for
> 'pregnancy-related disadvantages', pregnant women would find their cases
> subject  to comparison to some notional male equivalent of a pregnant woman
> (perhaps a  man with an 'unknown-to-science' but equivalent medical
> condition),
> and  employers would defend themselves by saying that they would treat that
> notional  male just the same as they did the pregnant woman. None of this
> was
> probably  within the "intention" of any lawmaker").
>
> McEvoy criticises the concept of 'intention' in the lovely Platonic word
> (lawmaker) -- cfr. Hart refers to Hoady's idiolectal use of 'lawgiver') --
> but I  am reminded that while Hart being Hampshire's senior, they
> contributed
> on a  lovely essay in pure philosophy of action, "Decision, intention, and
> certainty"  -- the result of a joint seminar -- that will provoke Grice to
> have his  "Intention and UNcertainty" instead, and which in any case
> displays
> the  centrality of the concept in Hart's legal (even) philosophy (with
> caveats -- a  law is a coercive order even if its original utterer (with
> attending intentions)  is an ex-operant (to use Grice's sarcasm).
>
> Cheers,
>
> Speranza
>
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