[lit-ideas] Re: Hartiana
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- Date: Sat, 21 Mar 2015 06:04:56 -0400
If Hart's legal philosophy is philosophy-lite, as McEvoy suggested, Grice's
legal philosophy is, as Palma slightly rudely implicated, philosophy-zero.
These are different varieties of conceptual analysis. Take Hart's "Concept
of Law" -- McEvoy suggests that it is the recognition rule (""Whatever the
Queen in Parliament enacts is law") that he (McEvoy) finds particularly
problematic. Some Americans, too, seeing that they have no Queen (but surely
there is a meta-meta-adjudication rule that allows each country to adapt the
recognition rule the country pleases -- it's different for the recognition
rule in INTERNATIONAL law), this may be controversial.
ANY passage from the clear-in-style "Concept of Law" presents some
thought-provoking (Geary doesn't like the phrase) passage. Take:
"Where altruism is not unlimited, a standing procedure providing for such
self-binding operations is required is required in order to create a
minimum form of confidence in the future behaviour of others, and to ensure the
predictability necessary for cooperation." -- Hart, The Concept of Law.
There are so many keywords here: but I will stick with cooperation and
altruism, or benevolence (as opposed to self-love). Indeed, some legal
theorists have suggested that's it's neither cooperation nor competition that
one
wants in law, but copetition (a portmanteau of cooperation and competition).
After "The Concept of Law" was published, Grice started a series of
lectures at Oxford on cooperation, self-interest and altruism. The influence
cannot have been but Hartian.
In these lectures (where he coins 'implicature') Grice includes discussion
of the types of behaviour people in general exhibit, and therefore the
types of expectations they might bring to a venture such as a conversation".
Meanwhile, J. L. Austin was lecturing on "Words and deeds", where 'deed' can
have a legal use, too -- again: the influence of Hart.
Grice suggests that people in general both exhibit and EXPECT a certain
degree of helpfulness from OTHERS usually on the understanding that such
helpfulness does NOT get in the way of
particular goals and does not involve undue effort.
It two people, even complete strangers, are going through a gate, the
expectation is that the FIRST ONE through will hold the gate open, or at least
leave it open, for the second. The expectation is such that to
do OTHERWISE without particular reason would be interpreted as RUDE.
The type of helpfulness exhibited and expected in conversation is more
specific because of a particular, although not a unique feature of
conversation.
It is a COLLABORATIVE venture between the participants. There is a SHARED
aim"
"helpfulness in something equates to 'cooperation'
He seems to have decided that it does: by the later lectures in the
series, 'the principle of conversational helpfulness' has been rebranded the
expectation of 'cooperation'".
During the Oxford lectures, Grice develops his account of the precise
nature of this cooperation.
It can be seen as governed by certain regularities, or principles,
detailing expected behaviour. The term 'maxim' to describe these regularities
appears relatively late in the lectures.
Grice's INITIAL choices of terms are 'objectives' and 'desiderata'.
He was interested in detailing the desirable forms of behaviour for the
purpose of achieving a joint goal of
the conversation.
Initially, Grice posits TWO such desiderata. Those relating to candour on
the one hand
and clarity on the other.
The desideratum of candour contains his general principle of
making the strongest possible statement and, as a limiting
factor on this, the suggestion that speakers should try not
to mislead.
Then there's the DESIDERATUM OF CLARITY, which concerns the manner of
expression. The desideratum includes the IMPORTANT expectations of relevance
to
understanding and also insists
that the main import of an utterance be clear an explicit.
These two factors are constantly to be WEIGHED against two FUNDAMENTAL and
SOMETIMES COMPETING demands.
On the one hand, there's THE PRINCIPLE OF BENEVOLENCE, or Altruism (that
Hart quotes in the citation above) -- "Benevolent Principle": contributions
to a conversation are aimed towards
the agreed current purposes by the PRINCIPLE of Conversational Benevolence.
There's the balancing Principle of Conversational Self-Love -- or "Egoist
principle". The principle of CONVERSATIONAL SELF-LOVE ensures the
assumption on the part of both participants that neither will go to
unnecessary
trouble in framing their contribution. So there.
In a message dated 3/20/2015 7:52:34 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes:
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.
The keyword could be enthymematic -- a Greek word which literally means
'in the thyme' or heart (cfr. Hart) whch should render McEvoys "not
explicitly acknowledged" (as in Grice's favourite enthymeme: "Hart is an
Englishman; he is, therefore, brave".
There is a further connection with Hart and Grice here: Grice's principle
of economy of rational effort. In practical reasoning of the moral and
legal type, due, inter alia, to the defeasibility and cancellability of
different factors, it is almost impossible to list all the premises that lead
to a
moral or legal rational (i.e. non arbitrary) decision which is reached as
per a conclusion
----- While Legal Philosophy is a branch of Philosophy in General: the
analogy with 'virtue':
On a different note, I think O. K. and I disagree on the meaning:
"Philosophy, like virtue, is entire." O. K. and I agree on the philosophy bit,
more
or less. We seem to disagree on the meaning of the second part,
ii. Virtue is entire.
I take that to mean that if we say
iii. He is a good man; i.e. Hart is a good man.
i.e. more or less
iv. He is a virtuous man; i.e. Hart is a virtuous man.
we are not, and CAN NOT, be too specific. Indeed, it would be WRONG to be
too specific. Virtue is thus entire in that, while Aristotle racked his
brains, if that's the expression, to come up with taxonomies of virtues, and
scales of virtues, and classifications of all Greek virtues (and with such
complex names, too), still
ii. Virtue is entire.
This is possibly figurative in that 'virtus' is an abstract noun in Roman
that means, the quality -- the -tus -- of being 'virile' (Perhaps the Greek
cognate would be a derivate of 'aner, andros' -- cf. Sparta and the
andreia) -- which incidentally leads us to Latin 'vir' as a mass noun. It
cannot
be a specific part of a 'vir' that is still a 'vir' (but Geary might
disagree).
The main implicature seems to be that while the Aristotelians typically
think of virtues in the plural as comprising bravery, wisdom, justice, and
moderation, etc., say, the Stoics (and Grice is being Stoic here) and virtue
theorists (like MacIntyre) are being absolutist in holding that Virtue is
"unitary", if you don't like the logical form of 'entire'.
---
Now back to back to McEvoy's reference to 'reasoning'. Why is a conceptual
analysis of reasoning, including legal reasoning, important? Well, as a way
to elucidate reason, qua 'faculty', to use Kantian terminology.
There is an initial set (initial premises) -- which may be suitably
expanded on request by the reasoner from the premises actually PSYCHOLOGICALLY
entertained (an expansion thought by the reasoner to be formally cogent) --
together with further members each of which is thought by the reasoner to be
derivable by a principle of inference intended by the reasoner to be a
canonically formally valid one.
Can a verdict be wrong?
Etymolgically, "The verdict is false" is a contradictio )seeing that
verdict comes from from "ver", true, and "dit", past participle of dire "to
say") but not non-etymologically, where the alleged 'verdict' is appealed.
On a related note, is there such a thing as "mis-reasoning"? Surely, but
it seems obvious that the legal analytic philosopher should better stick, if
he is going to be systematic and abide by the unity of philosophy, with
trying to know (i.e. provide sufficient and necessary conditions) for what
_good_ reasoning -- in order to elucidate 'reasoning' _simpliciter_.
Enthymematic reasoning is _so_ common (in various ways, if not senses --
do not be common by multiplying the senses of 'common' beyond necessity).
What conceptual analysis does is provide a 'rational reconstruction'. Thus,
one may claim that
"The immortality of the human soul is proved
by the fact that if you cut off a chicken's head,
it will run round the yard for approximately
15 minutes before dropping.
Nothing legal about it, prima facie, but given as an example of what the
conceptual-analytic philosopher is supposed to do with it: provide a rational
reconstruction, for there may be elements which are not 'explicitly
acknowledged' -- and we must render the enthymeme into a precise piece of more
explicit valid reasoning, or alleged valid reasoning.
One rational reconstruction may go as follows:
If the soul is not dependent on the body, the soul is immortal. If the
soul is dependent on the body, it is dependent on that part of the body in
which it is located. If the soul is located in the body, it is located in the
head. If the chicken's soul was located in the head, the chicken's soul
would be destroyed if the head were rendered inoperative by removal from the
body. The chicken runs round the yard after head-removal. It could do this
only if animated, and controlled by a soul. Ergo, the chicken's soul is
_not_ located in, and _not_ dependent on, the chicken's head. Ergo, the
chicken's soul is _not_ dependent on the chicken's body. Ergo, the chicken's
soul
is immortal. If the chicken's soul is immortal, _a fortiori_ the human soul
is immortal. Ergo, the human soul is immortal.
On top of a rational reconstruction of the enthymematic aspects of
reasoning (including legal reasoning), the conceptual-analytic philosopher
shares
a bit of a Popperian concern. In ordinary language -- and both Hart and
Grice were 'members' of the "Oxford school of ordinary language philosophy"
that developed, unoriginally, in Oxford.
For we ascribe first and foremost reasoning to a reasoner when that
reasoner is trying to solve _some_ problem. We would reluctant to find a point
in
calling 'reasoning' a pointless sequence of formally valid steps as in
this example produced by Hilbert, the great logician:
I have 2 hands. If I had 3 more hands, I would have 5 hands. If I were to
have double 5, I'd have 10 hands. If 4 hands were removed, 6 hands would
remain. Ergo I would have 4 more hands than I have now.
(Hilbert, "The Collected Papers"). Reasoning is, also, a degree-variant
concept, not a flat one. There are, however, basic 'excellences':
simplicity, economy, accuracy, and inventiveness -- but "reasonable", unlike
"rational", remains the _privative_ adjective par excellence, an excluder --
what
Hart calls 'defeasible' (he famously brought back this word from property
law with caution, but trealising that 'negative' and 'conditional' carry the
wrong 'implications'): to be reasonable is to be relatively free from
unreasonableness.
Moral and legal reasoning is of the practical (or as I prefer, deontic)
form. Consider Ross on 'prima facie':
If, prima facie, Act I would be a lie and Act II would not, Act I is
better than Act II. Act I, but not Act II, would be a lie. Ergo, ceteris
paribus, Act I is better than Act II. (Ross is following Kant's condemnation
of
lying).
Another example mixes 'de facto' with 'de iure' considerations that only in
the rational reconstruction (via conceptual analysis) of the enthymeme
become 'expicitly acknowledged:
Ceteris Paribus Acc (given that R is to leave the country, & R is an
alien, that R is to obtain a sailing permit from the Internal Revenue -- where
"Acc" is an operator to read, "it is acceptable" and "R" is our 'reasoner"
--; R is to leave USA and is an alien. There is no Defeater (e.g. R is a
close friend of the President's contry and R arranges a travel in Air Force
I). Ergo, R is to obtain a permit.
Note the premise: "There is no defeater". Moral and legal reasoning
(indeed, like reasoning about implicature -- vide Macafferty) -- being
'defeasible' by "definition" does not need to state or explicitly acknowledge
all
possible defeaters (the task would be impossible). But it still works.
Our next reasoner may be the head accountant of a firm in Redwood City (and
it's accounting time) & gets an invited from his mother to visit her in
Milwaukee. Further, his wife has had a bad car accident and is lying in a
hospital in Boise, Idaho. We can reconstruct R's reasoning via conceptual
analysis by turning an enthymeme into something like this:
Acc (Given that R is to give his mother pleasure & that R is her favourite
son, R is to visit her in Milwaukee next week) and Acc (Given that R is to
get ready his firm's accounts -- he's head accountant & it's accounting
time, R is to spend next week in his office) and Acc, given that R is to give
his mother pleasure and he's to get ready the firm's accounts, & that he's
the favourite son, & head accountant and it's accounting time, that R
visit his for a long weekend & return to the office on Tuesday, and Acc, given
that R is to sustain his wife & she is lying, after with two broken legs,
internal injuries, & much pain, that R is to spend next week in Boise Idaho,
and Acc, given that R is i. to give his mother pleasure and ii. get ready
the firm's accounts and iii. sustain his wife, and that iv. R is the
favourite son and v. he's head accountant at accounting time, and vi. R is a
husband with a wife lying in Boise, Idaho, that R is to spend next week in
Boise, Idaho, and telephone the mother and the office daily; Ergo Acc (R is to
spend next week in Boise, telephoning his mother and office daily.
Other scenarios involve our reasoner have TWO different ends E1 & E2; each
with a different degree of desirability: d1 and d2. For any action A1
which will realise E1 or E2 -- to this or that degreee -- there is a
probability (Popperian if you want) p1 that A1 will realise E1 & a probability
p2
that A1 will realise E2. The desirability of the action, relative to E1 & E2
is a function of the desirabiity of E1 and E2 & the probability that A1 will
realise E1 and E2. Only if A1 scores higher (in action-desirability
relative to E1) than any alternative action, should R should choose to do A1.
Provisions should be made for, e.g. long-term (standing) vs. situational ends.
R may priorise family over business, and his children over Aunt Jemima
(who's been living with R all these years). On a particular occasion, though,
R may priorise Aunt Jemima (to get her
out of one of her tantrums) over taking R's son to see the hippopotami at
the zoo. While prudential rationality is perhaps _not_ just means-end
rationality, the determination over desires certainly does involve
means-end rationality. (vide the interesting supplementary document on
"Popper probability" in the entry for 'defeasible reasoning' in the Stanford
Encyclopedia of Philosophy).
Legal reasoning has its own specific features, but can hardly be 'merely'
playing by the rules (pace Schauer* and Schauer is explicit enough that he
is just using the mediaeval adage to catch the addressee -- what the blurb
of his essay reads as "intended readership" -- his essay is all about
QUALIFYING the adage-- incluiding an interesting section on 'cheats' or, as
Grice
would prefer, 'sneakiness').
As we've said, the etymology of "defeasible" usually refers to Middle
English law of contracts, where a condition of "defeasance" is a clause that
can invalidate or annul a contract or deed. But we should not be _wedded_
(figuratively) to that word, even if we _LOVE_ Hart. Though "defeat",
"dominate", "defer", "defy", "deprecate" and "derogate" are often used in the
same
contexts as "defeasible", the verbs annul and invalidate (and Grice's
favourite, 'cancel', and nullify, overturn, rescind, vacate, repeal, debar,
void, countermand, preempt, etc.) are more properly correlated with the
concept
of defeasibility than those words beginning with the letter d -- and we
could say this is where Grice meets Hart: the c-word (cancellability) versus
the d-word (defeasibility).
Many dictionaries do contain the verb, to "defease" with past participle,
defeased, which pleased Hart.
What perhaps necessarily didn't is that many political philosophers
(rather than legal philosophers) have been fond of the word "INdefeasible"
when
referring to rights, e.g., that were inalienable, divine, or indubitable --
and note that the essay where Hart introduces 'defeasible' is about the
ascription of RIGHTS.
The 1776 Virginia Declaration of Rights -- Virginia named originally after
the Virgin Queen -- and recall Hart's recognition rule, "Whatever the
Queen in Parliament enacts is law" -- has: "Community hath an indubitable,
inalienable, and indefeasible right to reform, alter or abolish government"
(also attributed to James Madison). John Adams went along similar lines: "The
people have a right, an indisputable, unalienable, indefeasible, divine
right to that most dreaded and envied kind of knowledge - I mean of the
character and conduct of their rulers.", Oddly, also did Lord Aberdeen, when
he
spoke of the "indefeasible right inherent in the British Crown" (not oddly
seeing that he was a conservative -- conservative trumps Hartian). Gouverneur
Morris echoed this: "the Basis of our own Constitution is the
indefeasible Right of the People." Studies dealing with Abraham Lincoln on the
justification of secession often cite those passages.
A legal philosopher (not a political philosopher) who use the word
"defeasible" has historically had different world view (from those who use the
word indefeasible (and this distinction has often been mirrored by Oxford and
Cambridge "Zeitgeist", as it were); hence it is rare to find a philosopher
such as Hart who use both words. In judicial opinions, with which Hart was
familiar, the use of "defeasible" is commonplace.
There is, granted, a healthy disagreement among legal philosophers whether
defeasible reasoning is central, e.g., in the consideration of open
texture, precedent, exceptions, and rationales, or whether it applies only to
explicit defeasance clauses. In The Concept of Law gives two famously clear
examples of defeasibility:
i. No vehicles in the park (please), except during important parades.
ii. Offer, acceptance, and memorandum produce a contract -- except of
course, when the contract is illegal, the parties are minors, inebriated,
incapacitated, *etc.*" -- with an emphasis on 'etc', and invention by Cicero
to
express defeasibility. Cicero sometimes uses 'ceteris paribus' and
sometimes 'ceteris absentibus' (roughly, 'other things being ABSENT' -- Geary
asks:
"if they are absent, how can they be 'other'? Cicero amuses me).
Yes, Cicero CAN be amusing, _and_ Hart -- if you are into that sort of
thing.
Cheers,
Speranza
* Playing by the Rules: A Philosophical Examination of Rule-Based
Decision-Making in Law and in Life (Clarendon Law Series), by Frederick
Schauer.
This is a philosophical but non-technical analysis of the very idea of a rule.
Although focused somewhat on the role of rules in the legal system, it is
also relevant to the place of rules in morality, religion, etiquette,
games, language, and family governance. In both explaining the idea of a rule
and making the case for taking rules seriously, the book is a departure both
in scope and in perspective from anything that now exists. "An insightful
journey...The book's general argument and the rich application of that
argument to more specific issues makes it well worth reading."-- Philosophical
Review. Schauer is a Frank Stanton Professor of the First Amendment at
Harvard, that Hart visited often.
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