[lit-ideas] Re: Hartiana
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Fri, 20 Mar 2015 11:52:27 +0000 (UTC)
>Now possibly 'arbitrary' has the wrong ring to it. When McEvoy proposed
two problems with, as I recall three multiple choice 'solutions', or possible
solutions, the underlying assumptions seemed to be that the choice of one
of the three given solutions -- (a), (b), or (c) -- would NOT be
*arbitrary*.>
This is correct and it is correct for nearly all legal problems: there are
better or worse solutions, though it may be a matter of dispute which are which.
Btw, on the second of the two problems (which involved a written decision
inconsistent with a previous oral decision), the same watchwords of "public
confidence" and "deterrence" are a useful guide to the solution adopted.
Clearly this kind of inconsistency undermines "public confidence" and should be
deterred: from that pov, one of the three solutions is (almost certainly) the
best.
This kind of 'systems-thinking' [involving notions like "public confidence" and
"deterrence"] is often not explicitly acknowledged in the courts' stated
reasoning - though nor is it explicitly denied. But, I suggest, it is very much
there as a kind of W3 "core aims and values" by which legal decisions are
arrived at. On a W3-based Popperian theory of law, we must take seriously that
legal decisions are not the product merely of their stated reasoning but of
many other things, especially W3.3 "core aims and values" that will be
reflected in decision-making but may not be explicitly acknowledged.
DonalLondon
On Friday, 20 March 2015, 9:36, "dmarc-noreply@xxxxxxxxxxxxx"
<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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