[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 26 Mar 2015 07:28:19 -0400
On a different note, if Hart's contribution is so vacuous, etc., (which
ain't), let's be reminded of the rich contents of this book, "The Legacy
of
Hart." 1: John Finnis, On Hart's Ways: Law as Reason and as Fact 2: David
Lyons, The Legal Entrenchment of Illegality 3: Sir Neil MacCormick,
Jurisprudence after Hart 4: Gerald Postema, The Social Foundations of
Sovereignty
5: Jeremy Waldron, Hart and the Rule of Law 6: W.J. Waluchow, Legality,
Morality, and the Guidance Function of Law 7: Antony Duff,
Responsibility and Liability 8: John Gardner, Hart on Responsibility 9:
Judith Jarvis Thomson, Some Reflections on Causation in the Law 10:
Richard Wright, The Nightmare and the Noble Dream: Causation and
Responsibility
11: Brad Hooker, Justice, Fairness, and Hart 12: Philip Pettit, Liberty
and Liberties 13: Cécile Fabre, Rights and Non-existence 14: Hillel
Steiner, Are There Still Any Natural Rights? 15: Leif Wenar, The Nature
of the
Claim 16: Leslie Green, Tolerance and Understanding 17: Susan Mendus,
Private Faces in Public Places 18: Alan Ryan, Liberty, Privacy, and
Cruelty
I take a passage at random: "Legalistic retributivism" -- NOT Hart's
thing, -- he's into 'ascriptivism', since Omar K. was speaking of -isms
--
"would imply that punishment is sometimes morally legitimate precisely
because
it is retribution for the violation of a morally illegitimate law." The
keyword
'illegitimate law' strikes me as one ripe for conceptual analysis.
"Illegal law" does
sound contradictory. "Legitimate law" is possibly tautologous in that
both
"legitimate" and "law" derive from the same Roman root ('lex'). So we
sometimes need to add the qualifying 'morally legitimate', to allow the
conceptual analyst to pass muster on what otherwise would be a case that
could turn
into a logical contradiction as 'illegal law' (cfr. 'illegitimate law'
SIMPLICITER).
The Grice/Hart interface: We are considering:
a. Smith was obliged to do it. vs. b. Smith was obligated to do it.
McEvoy brings in: c. Smith was obliged to do it. But Smith did not.
In fact, his (c) is a lovely ad hominem: d. Smith was obliged to do it
i.e. answer the question and not merely rehash stuff that fails to answer
it.
But Smith did not.
and closes his post with: e. Nothing in Speranza's post answers how Hart
advances on the unexciting, unexplanatory thesis that the difference
between legal and other obligations is that the former are imposed by law
and the
others are not.
to which I add f. Much obliged!
Only joking! Now, seriously!
In a message dated 3/25/2015 7:43:06 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx writes:
"Why can we not say (c)? If we don't rule this out, then a. may not be
factive, and the distinction with b. breaks down. If we rule it out as an
impermissible a construction, then we have turned the claim that "(a) is
factive" into a merely stipulative and non-substantive claim.
Well, that's why I provided some linguistic botany on 'oblige'. Indeed,
'obligate' DERIVES from 'oblige' (as 'implicate' derives from 'imply' --
as
in "Smith denied that he was implicated in the crime"). I think the
source
(McEvoy would say "blame") for this is Grice. Grice had been reading
Peirce,
which was a good thing ("there's nothing so bad in any book that it does
not make it worth reading" -- Prince Charles). Perhaps not so good a
thing
is that he tortured his tutees with it. Peirce uses
'index'
for cases like
i. The weathercock points to the north-east.
this surely entails that the wind blows from the opposite direction
(under
normal circumstances, where the weathercock is working properly rather
than artificially FIXED in that direction). When Grice decided that all
Peirce was talking was 'kryptotechnic', he started to use 'mean' --
Holloway
didn't. Grice came up with examples like
ii. The spots on my son Timothy did not mean anything to me, but to the
doctor -- I'm glad I called him -- they meant measles.
This entails for Grice that
iii. My son has measles.
Hart read that -- Grice, "Meaning" 1948 -- and criticised Holloway for
not
realising this important distinction between the 'factivity' of 'mean' as
in "Those spots mean measles" and the 'non-factivity' of 'mean' as in
iii. That ring in the bus meant that the bus was full.
which surely does not entail that the bus was full. Years later, after
reading Waugh's "Brideshead Revisited" (NOW A MAJOR FILM WITH EMMA
THOMSON),
Grice wrote, "Meaning Revisited", where he thinks that the
factive/non-factive distinction is not so distinctive. There is something
COMMON to 'mean'
factive and 'mean' non-factive. In both cases, 'mean' can be analysed
conceptually along a common line:
x means y, iff y is the consequence of x
This includes both cases. Surely we don't want to multiply senses of
"mean" beyond necessity (It's not, Grice, says, like 'vice' (carpenter's
tool)
and 'vice' (a failure in character) where what we have is rather two
words.
So, Hart is merely applying Grice's distinction. Hart wants to provide a
conceptual analysis of 'legal obligation' that does not rely on anything
having to do with a coercive order. For that, he uses 'oblige'. Hart
found his
usage of 'oblige' so FORCEFUL that, for him,
a. Smith was obliged to do it -- does entail that Smith did it.
In other idiolects, and other analyses, the rejection of this entailment
may not hold. Then Hart would say that we are using 'oblige' differently.
Hart wants to restrict 'oblige' not just to cases like 'push down the
cliff': -- g. Smith was pushed down the cliff. -- h. Nowell obliged Smith
to jump
down the cliff. Hart refers to Smith's body. If force applied to Smith's
body is MEANT, (h) entails (i) -- i. Smith jumped down the cliff. It is a
subtle usage that not everybody abides by. But Hart, 'ever the linguistic
philosopher' did. It's not like he extracted loads of illumination into
the
analysis of the legitimacy of the law (but then that's tautologous -- 'a
legitimate law'). But his focus was on the idea and concept and conception
that
'obliging' involves psychological motivations and reasons and causes,
whereas 'obligate' necessitates the appeal to a meta-linguistic 'rule'
that
deems the referred to obligation as 'legal'. As I say, Hart learned the
distinction from Grice as applied to 'mean', and Grice would later revise
his
thoughts -- his example of 'regret'. In some idolects, the issue of
factivity,
as it relies on the utterer's intentions, can vary, and it's not rare for
Grice to allow that two philosophers (himself and a friend of his, say)
have
different conceptual analysis of the same item.
On top of that, Hart, 'ever the linguistic philosopher', hardly compared
with Grice, 'ever the Griceian linguistic philosopher', and Hart tends to
vagueness in his prose. "He is obliged to do it" (rather than "He is
obligated to do it" "suggests" that the former "implies" "He did it". A
logical
implication is an entailment, but 'implies' can be read as 'implicates',
or as
conversational implicature, which would thus be defeated (or defeased) in
context, or explicitly. So one has, to use Hart's favourite adjective
very
'careful'. It is not coincidental that of ALL philosophers Grice could
criticise in his first William James lecture at Harvard in 1967, he chose
Hart
on 'carefully'. Grice thought, that with all his linguistic and
conceptual
acumen, Hart was still VERY WRONG about how to intepret 'implication':
the
conditions Hart saw for the use of 'carefully' (as in "He parked the car
carefully") seem to be merely IMPLICATED and not entailed, and thus not
part
of the necessary and sufficient conditions -- or some of them, since all
concepts have 'porositaet' or open texture for Hart -- of the conceptual
analysis of the corresponding notion.
Cheers,
Speranza
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