[lit-ideas] Re: Hartiana
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 26 Mar 2015 15:55:36 +0100
Noblesse obligate :)
On Thu, Mar 26, 2015 at 3:49 PM, Adriano Palma <Palma@xxxxxxxxxx> wrote:
> Precisely, one of the many pieces of evidence of a bogus distinction is
> its inability to translate, viz. oblige and obligate, viz being sorry
> feeling sorry
>
> -----Original Message-----
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> Subject: [lit-ideas] Re: Hartiana
>
> 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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