[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 25 Mar 2015 07:19:56 -0400
My last post today!
One advantage of Grice's legal philosophy over Hart's legal philosophy (as
much as Grice loved Hart) is that Grice concocted the idea of
disimplicature, i.e. the phenomenon of utterers MEANING less than they say.
Hart knew this, when he elaborated on the crucial distinction between:
a. Smith was obliged to do it.
b. Smith was obligated to do it.
Only (a) is factive, Hart notes, i.e. it entails "Smith did it". (b) is
not factive, since, well, it reports a 'legal' scenario, and there's no need
for Smith to have done anything (the law that obligated Smith may be unfair
and Smith is right in disobeying it).
Still, some utterers, Grice noted, fail to make the important Hartian
distinction oblige/obligate.
Suppose you rent a house at the beach. When you enter the house, you (the
addressee, in Grice's parlance) see a list tacked to the wall, labeled "The
Rules of the House."
It does not read "The Legal Laws", which would be illiterate.
The list reads:
1. No smoking.
2. Take the trash out when you leave, please.
3. Do not use the garbage disposal. It doesn’t really work.
4. Check-out is 11:00 AM. If you stay longer, you will be charged for an
additional night’s stay.
5. Have fun!
NB: The property manager is authorised to enforce the rules of the house by
adding appropriate charges to your bill.
As it happens, you check out at 11:05.
The property manager (utterer), as you are about to pay, utters:
i. Look, I don’t think this is fair.
But:
I am OBLIGATED to charge you an additional night’s rent. Those are the
rules of the house.
The Griceian question to Hart's problem is: is the property manager (qua
Griceian utterer) telling the addressee that he has a LEGAL "rental house"
OBLIGATION to charge you an additional night’s rent?
Some find it, naturally, difficult to imagine that he is, as there are
much more plausible ways to interpret what he explicitly communicates.
To start, the property manager (qua Griceian utterer) might think that he
is LEGALLY obligated to do something he regards as unfair.
The utterer might think that the OWNER of the house has the legal right to
set the charge and the conditions for imposing it.
That is, the utterer might see himself as more or less a bookkeeper in the
matter.
If this is the property manager’s view, he might add,
ii. I’m sorry. I’m just doing my job.
Another Griceian qualification is that the property manager MEANS (in
Grice's sense) to communicate ('signify', or, again, 'mean') that he is merely
OBLIGED (but hardly LEGALLY obligated) to add the charge.
The property manager, qua Griceian utterer, is engaging in what Grice calls
a 'disimplicature': he is plainly meaning less than he says -- or
explicitly communicates -- were the property manager sensitive enough to Hart's
distinction between oblige and obligate --
That is, the property manager (qua Griceian utterer) might be trying to
say that he is adding the charge to the bill, his reason (and motivation)
being that he does not DESIRE (a psychological state) to risk reproach from
the property owner for failing to do so.
If this is the property manager’s view, should add, to make his
disimplicature obvious:
iii. I’m sorry. I need to keep my job."
(rather than ii. I'm just doing my job; or iv. Those are the legal rules
of the house. -- If he says the 'legal laws' he is SURELY illiterate -- or
loves a tautology -- cfr. 'rules and regulations')
In other words, since Hart offered his devastating critique of the
jurisprudentialist (not the philosopher) John Austin, legal philosophers have
been
careful to guard this a distinction between being legally obligated and
merely being just obliged, and helpfully so.
However, there is no reason to think that your average property manager
(even if it's in East Hampton, where they CAN be punctilious) is being
CONVERSATIONALLY punctilious about Hart's distinction.
(Similarly, Grice regretted that utterers were now using "I will" meaning
"I shall" "and vice versa" -- and he longed for the days of the
Graeco-Romans were the subtleties of optional forms of verbs "provided
utterers with a
broad range of conversational options").
Austin once told Grice: "Look it up in the dictionary".
Grice responded: "I give a hoot what the dictionary says".
Austin reprimanded: "You mean you don't give one".
Grice said, "Whatever". And he was right. Since the Oxford English
Dictionary became the Modern English Dictionary (it does not register ALL uses
of
lexical items, just 'modern' ones) it can hardly help the Griceian. Note for
example, that 'obligate' is DEFINED as 'oblige':
to OBLIGATE:
I) to bind a person morally
II) to put a person under moral obligation
III) to constrain
IV) to compel
---> V) to oblige.
Lexicographers are not conceptual analysts like Hart or Grice so the
oblige-obligate distinction still holds (in the conceptual analyses of Hart and
Grice -- cfr. Grice on the imply-implicate distinction).
So as Grice rightly points out, there is a degree of indeterminacy in the
property manager-qua-Griceian utterer's implicature and disimplicature, as
it should.
The oblige-obligated distinction hasn't either filtered into 'common'
usage, which is just fine, since neither Grice nor Hart ain't common!
But we can derive further complications in the analysis that Hart's and
Grice's approach should help us with.
The property manager can navigate the situation that he is in without
supposing that the rules of the house give rise to their own distinct domain
of
"normativity", or that they have a point of view on how he should behave.
And because the property manager has no need for those notions, it would be
odd for us to employ them when we interpret his claim that he’s LEGALLY
OBLIGATED to charge an additional night’s rent.
But we can still flip the scenario slightly. Suppose you check out late
and that the property manager tells you:
v. I am OBLIGATED to charge you an additional night’s rent.
This time, however, he adds, by way of what Grice would have
'cancellation', and Hart, 'defeasibility':
vi. I am NOT going to impose that charge because I think it unfair.
Is the property manager (qua Gricean utterer) invoking a special sort of
normativity, unique to the rental house?
Once again, one may be sceptical, since there are much more plausible ways
to interpret what he explicitly communicates (or 'means', in Grice's
usage). As before, the property manager might think that given his role, he IS
LEGALLY OBLIGATED to do what the owner of the house has instructed him to
do, whether or not he thinks it fair.
If he is right, in refusing to impose the charge, he’s failing to live up
to the responsibility of the role. That may be unwarranted, but it’s a
failing that is easy to understand, as people all the time feel conflicts
between the roles they occupy and the decisions they would make if freed from
the constraints of the role.
But of course, there is another Griceian way to make sense of what the
property manager says.
In referring to his LEGAL obligation to impose the charge, he might just
mean to indicate that he feels compelled (obliged -- even though he did say
'obligated') to do so, even though he plans to resist.
Of course, we’d need to know more about the situation to know how best to
interpret the property manager's utterer's meaning.
But once again, the property manager can navigate the situation without
supposing that the Rules of the House generate a special sort of normativity,
or even quasi-normativity, and because he can, we can, too.
We could go on, making these examples ever more complicated and law-like.
At every step, there would be moral and prudential upshots to the social
facts that constitute the situation. However, there is no reason to think
that we would arrive at a point where we would have to posit a distinctive
class of LEGAL "rental house" OBLIGATIONS to make sense of the situation.
There is no reason to think that we would have to attribute a point of view to
a sign or a set of rules. And that should give us pause.
If we don’t need recourse to these ideas to understand the ways that
people engage the rules posted in a rental house, maybe we don’t need to
appeal
to them to understand the ways that people engage law.
Which is Hart's point.
Grice once analysed the implicature of
"NO TRESPASSING"
A) You shall not cross the barrier.
B) Don't cross the barrier.
He found that the way to tackle those utterances involved what he conceived
as the exhibitive-protreptic distinction. In the protreptic utterance
(like (B) -- as when we use 'oblige', or 'obliged' -- the reference is
psychological -- to motives (and motivations -- cfr. rules and regulations),
and
notably DESIRES -- on whose part? On the part of the utterer, primarily. But
in a protreptic utterance, there is an embedded reference to the
addressee's psychological states, too. A protreptic utterance is meant to
_move_ the
addressee. And move him how? Grice is explicit about this: via the
self-reflective recognition on the part of the addressee that it is the
utterer's
desire that the addressee should ADOPT a corresponding desire, in this case,
of not trespassing.
To
A. You shall not cross the barrier.
and
B. Do not cross the barrier.
we may add the archaic
C. Thou shalt cross the barrier.
D. Thou wilt cross the barrier.
E. (Thou) cross the barrier!
Grice says that the imperative - is "protreptic" while the "shall" form is
merely "exhibitive" of the utterer's intention. A protreptic utterance
Griice defines as one "by which the utterer intends, via imparting the belief
that he has a certain psychological attitude, to INDUCE a corresponding
attitude in the addressee", and surely there is both a moral and legal side to
protrepsis that makes it stronger than mere exhibition (even if logically,
a protreptic utterance is ALSO at least exhibitive of the utterer's
psychological attitude). Grice expands on this in his third book, "Aspects of
Reason" where he has "Op1a" Volitive -- A cases intentional, B cases
imperative" -- cfr. boulomaic" and how it all fits in varieties of practical
reason,
both moral and legal.
Hart and Grice have shown how subtle and concerned with intricacies of
conceptual analysis the interface between 'linguistic' philosophy and legal
philosophy can be!
Cheers,
Speranza
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