[lit-ideas] Re: Hartiana
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Tue, 24 Mar 2015 15:44:09 +0100
So we have such profound and original insights as that a judge should
"exercise discretion," that she should have "reasons justifying the
decision" etc. Such things would surely never have occurred to us if Hart
hadn't pointed it out. As to whether judges 'make the law,' there is no
contradiction in saying that they do so in some cases, the question is
whether they should, and if so in what way. That question cannot be solved
by some conceptual analysis of the terms like laws, law-making etc. Trying
to milk the ordinary language for such insights seems rather like trying to
find out what a mechanic should do about a broken car by analyzing the
terms 'car' and 'mechanic.' Lingustic analysis may be expected to render
some grammar rules for talking about cars and mechanics, not instructions
for repairing cars.
O.K.
On Tue, Mar 24, 2015 at 1:04 PM, Redacted sender Jlsperanza@xxxxxxx for
DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote:
> When Grice sent for publication to Harvard University Press (he had a
> contract with them, since the "Logic and Conversation" lectures were
> delivered
> as the William James Lectures and the distribution had to be through
> Harvard College) he submitted a "Retrospective Epilogue" that makes for a
> fascinating read.
>
> When Hart's second edition of "The Concept of Law" was published by the
> Clarendon Press, Hart composed a "Postscript" in two parts. In fact, he
> INTENDED to write a postscript in two parts, and the preliminary part
> refers to
> this second part. Since, like Grice's "Retrospective Epilogue", Hart's
> Postscript was also posthumously published, we have to deal with the
> editor's
> footnotes. One reads:
>
> "Hart did not complete the second of the two sections mentioned here".
> This is a footnote to Hart's "I consider in a second section the claims
> to a
> number of ... critics that in my exposition of some of my theses there are
> some obscurities". He is obviously having in mind Grice's conversational
> maxim, "Be perspicuous [sic]; or avoid obscurity of expression".
>
> There is a big difference. Although both Grice's Retrospective Epilogue
> and Hart's Postscript make for fascinating reads, since Hart had published
> the
> first edition of The Concept of Law with the Clarendon Press (and not,
> say, Harvard University Press), the Clarendon Press, who know what they
> are
> doing, got the brilliant idea of compiling a volume of essays JUST to
> discuss
> this postscript.
>
> It is:
>
> "Hart's Postscript: Essays on the Postscript to `The Concept of Law',
> edited by Jules L. Coleman, and the table of contents is as follows -- they
> managed to edit 12 excellent essays, which is evidence of the HISTORICAL
> role
> of Hart's legal philosophy within and without Oxford.
>
> 1: Joseph Raz: Two Views of the Nature of The Theory of Law: A Partial
> Comparison
> 2: Timothy Endicott: Herbert Hart and the Semantic Sting
> 3: Nicos Stavropoulos: Hart's Semantics
> 4: Jules L. Coleman: Incorporationism, Conventionality and the Practical
> Difference Thesis
> 5: Scott Shapiro: Hart's Way Out
> 6: Andrei Marmor: Legal Conventionalism
> 7: Benjamin Zipursky: The Model of Social Facts
> 8: Kenneth Himma: Law's Claim of Legitimate Authority
> 9: Stephen Perry: Hart's Methodological Positivism
> 10: Brian Leiter: Realism, Hart Positivism, and Conceptual Analysis
> 12: Jeremy Waldron: Normative (or Ethical) Positivism
>
> Why is the postscript so important? Well, it clarifies a few points -- for
> those who needed it. Hart HAS to grant that he had "originally [written]
> "The Concept of Law" with English undergraduate readers in mind". I would
> add
> Oxford undergraduate readers, but he doesn't! At that point, Oxford
> ordinary language philosophy was so widespread that you could count on a
> book
> published by the Clarendon Press to be used as textbook in what Grice
> calls
> 'redbrick' universities as well.
>
> In the postscript Hart repeats that his view of the law is a GENERAL one,
> i.e. a philosophical one (rather than one that a jurisprudentialist or a
> legal thinker might give): "It is general in that it is not tied to any
> particular legal system but seeeks to give an explanatory and clarifying
> account
> of law as a complex social and POLITICAL institution with a rule-governed
> (and in that sense 'normative') aspect."
>
> Note the use of 'normative' within the right scare quotes: once a
> positivist, always a positivist, even if gone 'soft' (Hart found
> Dworkin's epithet
> of Hart as a soft positivist complimentary enough).
>
> Hart's model is based on a paradigm (NOT in Kuhn's sense): the municipal
> legal system.
>
> And of course, has as a keyword the concept of a 'legal rule'. His focus is
> on what he calls the 'settled law', rather than any good old law: the
> settled laws of the municipal legal system, and he takes an effort to
> clarify
> what he calls "an internal perspective of the law", without rendering him
> for that an 'interpretivist'. Hart had used 'normative' in scare quotes:
> the
> adage here by Hart is:
>
> "Description may still be description, even when what is described is an
> evaluation."
>
> He may be having in mind the developments in Oxford ordinary language
> philosophy in ethics as put forward by Hare in "The Language of Morals",
> and by
> the time of the postscript, Grice had already delivered the highly
> influential "Conception of Value" Paul Carus Lectures, so Hart know what
> he could
> do and what his real friends would say about his enterprise.
>
> Part of the Postscript is concerned with demolishing the simplistic
> 'semantic sting', i.e. the idea that Hart is just onto "the meaning of the
> word
> "law"". This gives Hart ample opportunity to explore the semantics and
> pragmatics he is committed with, for Dworkin had called Hart, not
> necessarily in
> a complimentary way, a 'semantic legal theorist'. But surely there are
> variations to the interpretation of a phrase that sounds simple enough:
> "the
> meaning of the word "law"".
>
> What irritated Hart about being classed as a 'semantic theorist' is that he
> was done so along with John Austin! The keyword here would be: semantic
> legal philosophy, and Hart being merely a semantic legal philosopher,
> which
> he was not! It seems to be confusing a methodology with the outcome of
> applying this methodology to a given field of philosophical speculation.
>
> Those who view Hart as a 'semantic legal philosopher', Hart says, confuse
> "the MEANING of a concept [of 'law', or 'justice' -- his example in "The
> concept of law"] WITH THE CRITERIA [Witters's follows take notice!] for
> its
> application". "The criteria for the application of a concept with a
> constant
> meaning [cfr. Grice, do not multiply senses beyond necessity] may vary."
>
> "To make this clear", Hart goes Griceian, "I drew in effect the same
> distinction between a CONCEPT and different CONCEPTIONS of a CONCEPT".
>
> Grice in fact starts his Carus lectures on the "Conception of Value" with
> an extended quote from Hume where this concept-conception distinction is
> drawn -- and a very useful one too. Hart goes on to quote from Rawls who
> makes
> the very same distinction (Rawls quotes from Grice's "Personal Identity")
> when in "A theory of justice" he distinguishes between 'the concept of
> "justice"' from the 'conception of justice' -- where Rawls explicitly
> states
> that he is "follow[ing] Hart".
>
> Hart goes on to focus extensively on truth, truth-values, and
> truth-conditions of PROPOSITIONS. He is having in mind Frege's idea that
> the meaning of
> a concept is best manifested in the proposition in which it occurs. It is
> Hart's obvious view, which Grice shared, that it is very important NOT to
> confuse "the meaning of 'law' with the meaning of propositions of law".
>
> In replying to another epithet Hart's view received, that of being a
> 'conventionalist' approach to law, Hart is ready to admit that his theory
> "is
> not a plain-fact theory of positivism, since amongst the criteria of law it
> admits VALUES" -- to whose conception Grice had dedicated the whole Carus
> Lectures!
>
> Hart seems to regard Dworkin and other critics as vain or hardly humble.
> Hart explicitly states: "I think it is quite VAIN" -- the 'quite' is a very
> Oxonian turn of phrase -- "to SEEK any MORE SPECIFIC purpose which law as
> such serves beyond providing guides to human conduct." Admittedly, one
> should
> not multiply senses of 'vain' beyond necessity. And 'vain' can be
> interpreted as "bound to fail", not just
> 'you-probably-think-this-song-is-about-you' use of 'vain' ("You're so
> vain").
>
> Hart goes on to minimise the point about the sufficient and necessary
> conditions for the conceptual analysis of 'law'. After all he had made the
> point
> of comparing his view with Bentham's and John Austin's (law as coercive
> orders). But, as Hart now writes in the "Postscript": "The occasion for
> legal
> COERCION are ... cases where the PRIMARY FUNCTION of the law in guiding
> the conduct of its subjects HAS BROKEN DOWN" which should HARDLY happen
> in a
> municipal legal system, and NEVER happen in an ideal municipal legal
> system.
>
> Hart repeats that "the existence AND AUTHORITY of the RULE OF RECOGNITION",
> you like it or not, "SHOULD depend on the FACT of its acceptance by the
> courts."
>
> Hart was particularly infuriated, but wouldn't show it (the Brahmin he was)
> that his critics -- and he was proud to state that his "Concept of Law"
> had more converts than critics anyway! -- failed to realise that for
> Hart, to
> use the words in the "Postscript", "the RULE OF RECOGNITION itself, as
> well as particular rules of law identified by reference to it" "have a
> 'penumbra' of uncertainty'.
>
> A lovely metaphor that Grice should have made use when he titled his
> British Academy Lecture" "Intention and Uncertainty". But I grant that
> "Intention and the penumbra of uncertainty" might not have pleased ALL
> Griceians!
>
> Hart notes he is being metaphorical by using scare quotes around 'penumbra'
> -- a lovely Latin word.
>
> Hart focuses on rationality. By the time he wrote the Postscript he would
> have attended Grice's John Locke lectures at Oxford on "Aspects of reason
> and reasoning" and Hart was ready to be explicit about this, when Hart
> writes
> in the postscript that "an informed judicial DECISION can be made when the
> composition of an unforeseen case is known and the issues at sake in its
> decision can be identified AND SO RATIONALLY SETTLED". This may have to do
> with this point about 'arbitrary' and 'non-arbitrary' we were highlighting
> on this thread.
>
> If there is a 'penumbra' of uncertainty -- which makes Hart's sort of
> conceptual analysis a very subtle one -- Hart was also infuriated (but
> wouldn't
> show it) that he had spent some time in "The Concept of Law" to speak of
> legal rules "identified in general terms by the criteria provided by the
> RULE
> OF RECOGNITION" have what Hart calls (after Waissmann) 'open texture' --
> i.e. defeasibility. Like conversational implicatures, legal concepts (and
> rules) are 'indeterminate' (Grice sees the indeterminacy of conversational
> implicature as 'disjunctional' in nature: "he implied that p, or q, or r,
> or
> ...". Hart sees 'defeasibility' as notably express by "unless".
>
> Hart goes back to the issue of 'arbitrariness' and rationality. He is
> considering that when the questioni s whether a given rule applies to a
> particular case, the law fails to determine an answer either way and so
> proves
> indeterminate. Such cases are not merely 'hard cases', or controversial in
> the
> sense that "REASONABLE and informed laywers may dissagree about which
> answer is LEGALLY CORRECT." Rather, they are controversial in the sense
> that
> the law in such cases is fundamentally INCOMPLETE. "They are legally
> UNREGULATED and in order to reach a DECISION in such cases courts mst
> exercise the
> RESTRICTED LAW-MAKING function" which Hart calls "discretion" -- so
> British.
>
> The linguistic philosopher ever, the Poscript by Hart stresses points about
> meaning and propositions. After all, "a proposition of law is TRUE ONLY IF
> in conjunction with other premisses it follows from principles" -- cfr
> Grice on 'first philosophy' as the philosophy of 'first principles' --
> which
> both best fit the legal system's institutional history and also provide
> the
> best moral justification for it."
>
> Hart holds, like Grice, a rather conservative correspondence theory of
> truth that had come under the attack of Strawson (the ditto or performative
> theory of truth) and Hart keeps referring to the _facts_ ("in many cases
> moral
> facts") which render a proposition true (or in Hart's more sophisticated
> parlance, "in virtue of which" a proposition is true.
>
> Hart is very tolerant when it comes to the identification of these 'moral
> facts', and here we have his legal philosophy display this tolerance. He
> writes in the Postscript: "That there are such objective moral facts is a
> controversial philosophical theory" (indeed the subject matter for the
> justification of absolute value in Grice's ultra-complex third Carus
> lecture). Hart
> goes on: "If there are no such facts, a judge, told to apply a MORAL test,
> can only treat this as a call to the EXERCISE BY HIM of a law-making
> deiscretion in accordance with his best understanding of morality and its
> requirements and subject to whatever constraints on this are imposed by
> the legal
> system."
>
> Whatever the status of moral judgements may be, whenever the law requires
> courts to apply moral standards to determining the law it thereby grants
> the
> courts discretion and directs them to use it according to their best moral
> judgement in making what is a new law. This "does not thereby convert
> morality into pre-existing law", Hart adds.
>
> Hart does not dwell with many specific examples in the Postscript when one
> he treats is the practice, "the mere regular practice of churchgoers
> removing hats in church". He loves that practice. It gives him
> opportunity to go
> into other practices. "Plainly a society may have rules ACCEPTED by its
> members which are MORALLY INIQUITOUS", so Hart is not just 'into' mere
> "rules
> of [this or that] game". This leads him to state strongly that "there is
> no
> IMPORTANT NECESSARY or CONCEPTUAL connection between law and morality". He
> gives some credit to the word 'principle' (as in 'legal principle') but he
> is worried a conceptual analysis may prove difficult here: "What ARE legal
> principles, and how do they differ from legal RULES?"
>
> Very much like Grice in "Aspects of reason", where he spends a whole
> lecture on the explanatory-justificatory distinction, Hart speaks of the
> two
> "uncontroversial features of breadth and desirability from some point of
> view
> which account for the EXPLANATORY and JUSTIFICATORY role of principles in
> relation to rules".
>
> Another specific example Hart discusses is the 'statutory rule that a will
> is invalid unless signed by two witnesses' -- harmless enough -- and goes
> on to explore scenarios where "a rule is defeated" (or defeased, as I
> prefer) "in competition with a more important rule in a given case".
> (Hart quotes
> fom Riggs v. Palmer as a case that may refer to what we may call the
> 'principle' that "a man may not be permitted to profit from his own
> wrongdoing".
> This principle was held notwithstanding the clear language of the
> statutory rules governing the effect of a will to preclude a murderer
> inheriting
> under his victim's will."
>
> A deligthful segment of the first section (he never completed the second
> section, Hart never did, alas) is Hart's discussion of Hercules qua judge.
> The criticism he is addressing concerns this idea that Hart's conceptual
> analysis would require a sort of 'mythical ideal judge', as Hercules was.
> Hart
> likes that. Should the courts be understood as "trying to imitate
> Hercules"?
>
> "I do not find plausible," Hart writes, "the view that in ... limited
> exercises of constructive interpretation judges are best understood as
> trying to
> imitate Hercules's holistic system-wide approach." Which sounds very
> reasonable, since Hercules is a demi-god, and a judge necessarily ain't,
> except
> by hyperbolic implicature. The keyword, nevertheless (Geary's favourite
> phrase) is: "Herculean judge", and an interesting one at that.
>
> Hart's main concern, as it should, is with that delight for conceptual
> analysts: the rule of recognition. Hart writes: "Surely an English judge's
> reason for treating Parliament's legislation as a source of law having
> supremacy over other sources includes the fact that his judicial
> colleagues concur
> in this as their predecessors have done." There's no 'brute fact' about
> this.
>
> The rule of recognition MAY be qualified as 'conventional' -- even, to
> quote from Hart, "a mere conventional rule accepted by the judges and
> lawyers
> of particular legal systems."
>
> When it comes to rights and duties, Hart repeats the separability thesis
> that is the core of his conceptual analysis: "There are no necessary
> CONCEPTUAL connections between the content of law and morality." He knew
> where R.
> M. Hare fit, and where he himself did. Oxford can be very tidy when
> distributing 'fields of philosophy' to their practitioners. This does not
> preclude,
> Hart hastens to add, "except where the law" that has been "identified"
> "has itself incorporated moral criteria" -- and moral criteria for some
> purpose: "for the identification of the law". These exceptions hardly
> refute the
> conceptual analysis of Hart's positivist approach that "the law may be
> identified without ANY REFERENCE to morality."
>
> If he has referred to 'morally iniquitous' legal rules, he goes on to
> expand on this: A system may "contain laws (e.g. those relating to the
> formation and enforcement of contracts) which may NOT be affected by the
> general
> wickedness of the system and individuals may have relied on such laws in p
> lanning their lives or making dispositions of properties". This is a
> subtle
> manifestation of Hart's type of conceptual analysis.
>
> The fact is that the judge "must exercise his DISCRETION". Hart goes on to
> distinguish between what Grice would have as the said versus the
> implicated (and we have discussed to what extent what is merely implicit
> can on
> request be expanded in some sort of rational reconstruction). For Hart
> distinguishes between 'the EXPLICIT settled law' and the "IMPLICIT legal
> principles" which may be operative. "The judge must exercise his
> law-making powers."
> "But," again, "he must NOT do this _arbitrarily_ [my emphasis]: that is,
> he
> must ALWAYS have SOME GENERAL REASONS JUSTIFYING his decision and he must
> act as a conscientious legislator would by deciding according to his own
> beliefs and values."
>
> Hart goes on to play linguistic botany: 'law-making', 'law-giving',
> 'legislator' -- and finds he can find the game entertaining. It is not
> false to
> say that a judge "makes" the law, for example. When the existing law is
> clear, the judge is, to use Hart's phrase, "the mere 'mouthpiece' of a
> law" --
> where 'mouthpiece' is again in scare quotes (It does not mean a piece of
> the
> mouth). Hart goes on to quote some venerable judges: Macmillan, Radcliffe,
> Reid. In his decisions, the judge "has an inescaple though 'interstitial'
> law-making task. 'Like a consceintious legislator", a judge will rely on
> "his sense of what is best" and not on any already established order of
> priorities established for him by law. After all, the delegation of of
> limited
> legislative powers to the executive is a familiar feature of democracy
> and,
> as Hart says, "such delegation to the judiciary seems a no greater menace
> to democracy".
>
> Cheers,
>
> Speranza
>
>
>
>
>
>
>
>
>
>
>
>
>
>
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