[lit-ideas] Re: Hartiana
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 26 Mar 2015 09:16:16 -0400
My last post today!
O. K. was making a point about Serbian -- Hart's "Concept of Law" was
translated to many languages, but I fear that if it were to be translated to
LATIN ('obligare', 'obligatio') the very English distinction between 'being
obliged' and 'being obligated' would collapse. H. L. A. Hart would perhaps
say, Regulus's loss, no doubt!
Elected as a consul, good ole Regulus served as a general in the First
Punic War, where he defeated the Carthaginians in a naval battle at Cape
Ecnomus near Sicily and invaded North Africa, winning victories at Aspis and
Adys, until he was -- "alas", writes the Roman historian Tacitus -- defeated
and captured at Tunis. After Regulus (not Tacitus) was released on parole to
negotiate a peace, Regulus urged, persuaded (even forced) the Roman Senate
to refuse the proposals. Then, ironically over the protests of his own
people (whom he thought he had successfully persuaded by argumentative force)
to have the terms of his parole fulfilled, Regulus returned to Carthage,
where he was tortured to death. He was rightly seen by the Romans as a model
of civic virtue, as his name implies, "Regulus" (and vide Hart's distinction
between 'as a rule', and 'following a rule').
John Austin should be distinguished from John Langshaw Austin that always
went by J. L. Austin.
Similarly, H[erbert] L. A. Hart should be distinguished from the
jurisprudentialist H. Hart, a leading legal process scholar. Oddly, H. L. A.
Hart
wrote about H. Hart. H. L. A. Hart writes of H. Hart (that's Henry Hart) that
he
"[is always] exuding nervous energy, pacing up and down for two hours
before every lecture, chain-smoking, and castigating Herbert for his mistaken
positivist views."
It is one of the few occasions where H. L. A. Hart referred to himself as
Herbert, but only to pun on Henry Hart. (Herbert preferred "Herbert").
---
So, to use Hart's favourite adverb, one has to be _careful_ here.
In a message dated 3/26/2015 8:35:40 A.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes:
"He was forced to do it" does seem to entail that 'he did it', but it is
not clear that "He was obliged to do it" carries such an entailment. If "He
was obliged to" may in some sense be used as synonimous with "He was forced
to," that sense is, I would think, different from the sense of having a
legal obligation. It's obvious to anyone with eyes to see that people don't
always do what they have a legal obligation to do. Thus the whole issue
seems irrelevant, sorry.
It may do to place the Hart-John Austin polemic in historic context. If
philosophy generated the same old problems it would be dead!
There is a current revisionism of John Austin's view.
So, the point Hart is making should be contrasted with John Austin's actual
wordings, as to the existence of this implication that Hart is bringing to
the forum to allow him to distinguish between 'was obliged' versus 'was
obligated' -- a distinction NOT made by John Austin.
Recall that it's the 'key to the science of jurisprudence', no less, in
Hart's words, that is at issue here!
Some modern, post-Hartian, commentators have appreciated in John Austin
elements that were probably not foremost in his mind (or that of his
contemporary readers -- never mind Hart!).
For example, one occasionally sees Austin portrayed as the first “realist”
-- but Omar will dislike any -ism, apparently?
In contrast both to the theorists that came before John Austin and to some
modern, post-Hartian legal philosophers, Austin is seen as having a keener
sense of the connection of law and power, and the importance of keeping
that connection at the forefront of analysis.
John Austin's theory may thus be not necessarily seen as a theory of the
Rule of Law: of government subject to law.
It can also noticeable be seen as a theory of the ‘rule of men’: of
government using law as an instrument of power.
Such a view may be considered realistic or merely cynical.
But it is, in its broad outlines, essentially coherent -- in spite of
Hart's allegations to the contrary -- based on a different conceptual analysis,
that trades on the implications (conversational implicature?) of 'was
obliged to do A' ('was forced') and the lack of such an implication in 'was
obligated to do A'.
When circumstances seem to warrant a more critical, sceptical or cynical
approach to law and government, John Austin's equation of law and force will
be attractive — however distant such a reading may be from John Austin's
own liberal-utilitarian views at the time of his writing, or his more
conservative political views later in his life.
And it's only logical that Hart took a need to criticise John Austin's
cynicism to hart, oops, heart -- since there is nothing cynical in the very
OXONIAN Hart (John Austin's main affiliation was London).
As it happens, it is said that John Austin's life was filled with
disappointment and unfulfilled expectations.
His influential friends (who included Jeremy Bentham, James Mill, John
Stuart Mill and Thomas Carlyle) were impressed by his intellect and his
conversation, and predicted he would go far.
However, in public dealings, Austin's nervous disposition, shaky health,
tendency towards melancholy, and perfectionism combined to end quickly
careers at the Bar, in academia, and in government service (
John Austin was born to a Suffolk merchant family, and served briefly in
the military before beginning his legal training.
John Austin was called to the Bar, but he took on few cases, and, like
Hart, soon quit the practice of law.
Austin shortly thereafter obtained an appointment to the first Chair of
Jurisprudence at the recently established University of London.
Austin prepared for his lectures by study in Bonn, and evidence of the
influence of continental legal and political ideas can be found scattered
throughout Austin's writings.
Commentators have found evidence in Austin's writings of the German
Pandectist treatment of ROMAN LAW, in particular, its approach to law as
something that is, or should be, systematic and coherent.
Lectures from the course he gave were eventually published as “Province of
Jurisprudence Determined”.
However, attendance at his courses was small and getting smaller, and he
gave his last lecture.
A short-lived effort to give a similar course of lectures at the Inner
Temple met the same result.
John Austin resigned his London Chair -- as did Hart when he found he had
"nothing new to say" (the irony is that Hart was succeeded by his most
acerbic critic: Dworkin. This was enough for Hart to write his Postscript
attacking Dworkin's moral approach to law.
John Austin later served on the Criminal Law Commission, and as a Royal
Commissioner, but he never found either success or contentment.
John Austin did some occasional writing on POLITICAL themes (after all,
philosophy, like virtue, is entire), but his plans for longer works never
came to anything during his lifetime, due apparently to some combination of
perfectionism, melancholy, and writer's block.
John Austin's changing views on moral, political, and legal matters also
apparently hindered both the publication of a revised edition of “Province of
Jurisprudence Determined,” and the completion of a longer project started
when his views had been different.
There is some evidence that John Austin's views later in his life may have
moved away from analytical jurisprudence towards something more
approximating the historical jurisprudence school.
Much of whatever success John Austin found during his life, and after, must
be attributed to his wife Sarah Austin, for her tireless support, both
moral and economic (during the later years of their marriage, they lived
primarily off her efforts as a translator and reviewer), and her work to
publicize his writings after his death (including the publication of a more
complete set of his Lectures on Jurisprudence).
Credit should also be given to John Austin's influential friends, who not
only helped him to secure many of the positions he held during his lifetime,
but also gave important support for his writings after his death
John Austin's work was influential in the decades after his passing away.
E. C. Clark wrote in the late 19th century that John Austin's work “is
undoubtedly forming a school of English jurists, possibly of English
legislators also. It is the staple of jurisprudence in all our systems of
legal
education.”
A similar assessment is made, ironically, by Hart, looking back nearly a
century later, but before his "The concept of law" -- where Hart explores the
lack of implication of 'was obligated' versus the factive implication in
the psychogically reading of 'was obliged'.
“Within a few years of his death it was clear that his work had established
the study of jurisprudence in England”
(Hart 1955: p. xvi).
John Austin's influence can be seen at a number of levels, including the
general level of how legal philosophy is taught, and the use of a
conceptual-analytical approach in legal theory (that John Austin shared with
Hart).
At such levels, John Austin's impact is felt to this day, even post-Hart.
Hart could write that
“John Austin's influence on the development of England of Jurisprudence has
been greater than that of any other writer.” (Hart 1955: p. xvi).
And Hart writes this even while John Austin's particular command theory of
law became almost friendless, and is today probably best known from Hart's
use of it (1958, 1994) as a foil for the elaboration of Hart's own, more
nuanced approach to legal theory (In particular, John Austin fails to
identify conversational implicatures where he needs them!)
In recent decades, some theorists have revisited John Austin's command
theory (and other works), offering new characterizations and defenses of his
ideas.
Cheers,
Speranza
REFERENCES:
Austin, John, 1832, The Province of Jurisprudence Determined, W. Rumble
(ed.), Cambridge: Cambridge University Press, 1995.
–––, 1879, Lectures on Jurisprudence, or The Philosophy of Positive Law,
two vols., R. Campbell (ed.), 4th edition, rev., London: John Murray;
reprint, Bristol: Thoemmes Press, 2002.
Cotterrell, Roger, 2003, The Politics of Jurisprudence: A Critical
Introduction to Legal Philosophy, 2nd edition, London: LexisNexis.
Hart, H.L.A., 1954, “Introduction” to John Austin, The Province of
Jurisprudence Determined, H.L.A. Hart (ed.), London: Weidenfeld & Nicolson,
pp.
vii-xxi.
–––, 1958, “Positivism and the Separation of Law and Morals,”Harvard Law
Review, 71: 593–629.
–––, 1994, The Concept of Law, 2nd edition, Oxford: Clarendon Press.
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