Jl: 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. *Well, we CAN be more specific, and usually are. In fact, it is seldom that we characterize someone as a "virtuous man." But we say things like "Tom is smart" without thereby necessarily implicating that he is not brave, for example. If Tom is so vain that he takes offense at being described by a particular virtue he is known to possess without an addition such as: "And I don't really know but I am sure that he is brave, honest, and dilligent as well" that is, I would say, his problem. I think that I'll leave it at that. O.K. On Sat, Mar 21, 2015 at 11:04 AM, Redacted sender Jlsperanza@xxxxxxx for DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote: > 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. > ------------------------------------------------------------------ > To change your Lit-Ideas settings (subscribe/unsub, vacation on/off, > digest on/off), visit www.andreas.com/faq-lit-ideas.html >