[lit-ideas] Re: Hartiana

  • From: Omar Kusturica <omarkusto@xxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Fri, 27 Mar 2015 02:01:48 +0100

Moreover, may I add that it takes a somewhat competent player to recognize
what move he is 'forced" to play in the position.

On Thu, Mar 26, 2015 at 6:58 PM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:

> Moreover, it occurs to me now that in chess one can speak of a 'forced
> move' without necessarily implying that the move was actually played. A
> forced move is a move that is the only non-losing move to play in the
> position, but people can play losing moves.
> O.K.
> On Thu, Mar 26, 2015 at 3:55 PM, Omar Kusturica <omarkusto@xxxxxxxxx>
> wrote:
>> 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-----
>>> From: lit-ideas-bounce@xxxxxxxxxxxxx [mailto:
>>> lit-ideas-bounce@xxxxxxxxxxxxx] On Behalf Of dmarc-noreply@xxxxxxxxxxxxx
>>> Sent: 26 March 2015 15:16
>>> To: lit-ideas@xxxxxxxxxxxxx
>>> 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
>>> 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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