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 >>> >>> 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. >>> >>> >>> >>> ------------------------------------------------------------------ >>> To change your Lit-Ideas settings (subscribe/unsub, vacation on/off, >>> digest on/off), visit www.andreas.com/faq-lit-ideas.html >>> >>> >> >