[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 25 Mar 2015 06:36:06 -0400
In a message dated 3/25/2015 5:32:36 A.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes:
It might be an interesting historical question whether first there were
laws or first there were judges, but it would probably turn out to be a
chicken-and-egg thing. Judges might well have preceded the written laws, but
before the written laws there were probably unwritten laws and customs. One
would hardly trust a judge who bases her decisions on personal opinion only,
without reference to some pre-existing law or norm. Still, there is no
contradiction in imagining a legal system that works in this way, it's just
difficult to imagine that it would be a good one.
Indeed. McEvoy finds legal philosophy philosophy-lite, and Palma thinks
it's rather philosophy-zero, but it can be fascinating!
The keywords in Omar K.'s passage above should be: JUDICIARY vs
LEGISLATIVE.
And there other keywords that invite conceptual analysis! Lots of writers
speak of 'natural law', in more than one way (Nancy Cartwright think that
physical laws LIE!) -- but Hart never used the tautologous 'legal law', as he
shouldn't. He does allow that
"Some writers distinguish 'formal' or 'legal' from 'historical' or
'material' sources of law."
That law has a legal source sounds analytically interesting to me, but
McEvoy might regard it as 'analytic', 'vacuous', 'definitional' and 'useless'
-- He follows MacCormick in his rejection of what both McEvoy and MacCormick
regard as Hart's claim to infame in legal philosophy: the rule of
recognition.
Witness McEvoy:
"Hart's central notion to his "Concept of Law" is the "rule of
recognition" - and the "rule of recognition" not only turns out to be
analytically empty (because it rests on a circularity, as MacCormick
showed)
but it is pure fiction (to add, perhaps, to the all the fictions Maitland
said
were the main constituents of English Law). It is a historical fiction -
i.e.
it cannot be traced in the history of the law; but most importantly it is
a
cognitive-epistemic fiction - i.e. it plays no part in how people,
including
lawyers, recognise what is law from what is not. Far from being "RIGHT",
this
approach could hardly be more wrong. It rests on a mistaken theory of
legal
knowledge and a mistaken philosophical theory of the purpose and validity
of a
'philosophy of law'"
I believe McEvoy's source for MacCormick is this book MacCormick wrote
while Hart was still alive, a book that MacCormick acknowledges that it is, as
it were, 'a work in progress', since, well, Hart was alive at the time of
the publication of MacCormick's book, and there's ALWAYS the possibility
that Hart could have said (as he didn't):
"All that MacCormick said is true; therefore, I am hereby obliged to
refute myself -- and I want the kind reader to take that as a rule of
recognition".
McEvoy provided a later attack on Hart's rule of recognition:
McEvoy writes:
"Hart's "Concept of Law" depends on a "rule of recognition" that is
circular to the point of being empty and it is also an epistemic fiction.
[...I]n
very small and relatively shallow field, Hart's "The Concept of Law" can
still be taught as some kind of preeminent text. Yet, even if we strip away
the fictitious "rule of recognition", we are left with nothing very
insightful as to what kind of cognitive processes are involved in legal
thought."
But I find Hart kindly inviting his undergraduate students at Oxford to go
into the distinction between formal and legal sources of law is, as some
would say, 'thought provoking', indeed, conceptual-analysis provoking, as the
issues raised by O. K. above.
Besides the avoidance of the tautotolous, "Laws have legal sources", Hart
was very much concerned with the 'step' (I think his word is) from a
pre-legal (he called it 'primitive', but that was back in 1961, before PC
police)
to a 'legal' scenario, and I think he rightly acknowledges the Romans for
having made this step.
In Hart’s view, as in most legal philosophers's views that follow him, the
step from the pre-legal, customary society into the society of laws is
characterised by the presence of secondary rules that cure the obvious defects
of a customary order.
(And it is intersting that Omar K. uses 'custom' in the above passage).
As for the Romans, perhaps they were too subtle. They used 'obligare'
without making the Hartian distinction between obliged/obligated which triggers
a delightful implicature (wasted on some Romans, I expect).
After all, the shifting forms of conceptual analysis in legal philosophy
have connections not merely with the history of ideas. A full analysis of
the significance of 'responsibility', ‘rights’ and 'being obliged' vs.
'being obligated' requires sensitivity not just to English usage ("I am
obliged"
versus "I am obligated" -- as in Hart's example, "I was obliged to lie, to
get out of a scrape, therefore doing what I was obligated NOT to do") but
also sensitivity to the intricate and fascinating conceptual divisions of
Roman law which are the 'legal' source of Hart's legal concepts and
conceptions -- only he went on to refine it all with stuff like defeasibility
("and
stuff", as Geary would NOT perhaps add).
Interestingly, since Omar K. also mentions the hen and the egg, this is
possibly still an unresolved (or 'unresolvable, for Witters) problem for
Einstein and others that focus on the 'laws' of nature (Vide Wittengstein,
"Wartime Journal" for a discussion of what he calls "The Egg and the Hen" (tr.
G. E. M. Anscombe"), section 42 -- and note his order of priorities: 'first'
the egg. (Geary discusses this in "Hens and Eggs" subverting the
Wittgensteinian canon, "Memphis Metaphysical Ministry, Occasional Papers, No.
27").
Cheers,
Speranza
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