[lit-ideas] Re: Hartiana
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- Date: Sat, 28 Mar 2015 04:19:21 -0400
Hart's distinction between "oblige" and "obligate" (that we don't find in
Cicero, but for that matter, neither in John Austin, that Hart knew well,
after editing his posthumous works) is the key for understanding, in a
conceptual analytic way, the problems he was tackling. It inspired others into
the same path, e.g.
Kenneth Himmar, in his "Law's Claim of Legitimate Authority", now in in
Jules L. Coleman (ed.), Hart's Postscript: Essays on the Postscript to the
Concept of Law. Oxford: Oxford University Press.
We see we change from keywords to keywords: the oblige/obligate distinction
becomes a way to understand larger issues like none other that the law's
own claim of legitimate authority.
A favourite quote from mine comes from Francome v. Mirror Group Newspapers
Ltd. [1984] 2 All ER 408 at 412, which again deals with these larger
issues that the oblige-obligate distinction merely points at:
"The right to disobey the law is not obtainable by the payment of a penalty
or a licence fee."
Of course, the type of obligation, call it legal, we are discussing, and
which for Hart is best expressed by "obligating" qua verb, rather than
"obliging", has to be crucially distinguished from this other keyword:
validity.
Hart is a positivist at heart, and holds that a duty is legally valid if
it is part of the legal system (i.e., if it is certified as such by the
tests for law in that system).
On top of that, one fascinating aspect of Hart's conceptual-analytic
approach is that legal obligation may be provided with a specific conceptual
analysis without incurring in the wrong idea that there are different 'senses'
to the expression 'obligation'.
A legal obligation may be thus analysed as a content-independent reason
that is both categorical and pre-emptive in force.
As Hart writes: "The recognition of an obligation to obey the law must as
a minimum imply that there is at least some area of conduct regulated by
law in which we are not free to judge the moral merits of particular laws and
to make our obedience conditional on this judgment."
All these clarifications are possible in a framework like Hart based on
conceptual analysis.
In a message dated 3/27/2015 11:37:22 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx quotes:
"Provided the victim managed to escape without giving his wallet, they
would NOT utter "I was obliged to give my wallet". They would restrict that
to the actual case where the victim DID as he was
obliged to do."
and comments:
"This "NOT" is a matter of conventional usage and perhaps even
"implicature" of a defeasible sort: it is not a "NOT" of a logical sort,
unless we try
to turn the convention into some kind of analytic stipulation i.e. it is
not a logical error (in any serious sense) to say "I was obliged to give my
wallet. But found this was one of those times when I did not do what I was
obliged to do - as in my pocket, in addition to my wallet, I had a gun ."
(Only a kind of empty-headed and tendentious philosopher would seek to
outlaw such a sentence by stipulation.)"
Empty-headed seems figurative, perhaps like 'obligation'. Allegedly wrong
ideas still happen within brains (or 'heads' if you must). Recall Hart's
adage: "I may be MISTAKEN, but I'm NOT CONFUSED." "Tendency" may be a nice
way to qualify what Hart's view as the 'linguistic turn', a minor revolution
that happened to occur (and due to him, in part!) in his own premises:
Oxford!
By the way, Hart's use may well happen NOT to be 'conventional' (a
theory-laden expression in need of analysis itself): it can be just
'educated', as
have been accepted, among utterers of Hart's generations. Understanding
Hart entails understanding his usage of words rather than merely label them
'conventional', which perhaps were not. But I think we do agree that what he
has in mind is a mere conversational implicature, which is surely
defeasible. (Grice was interested in these type of 'implicatures' because they
allowed to disengage a Fregean talk of 'sense' into the conceptual analysis
one
was engaged in).
If what is at stake is obedience by coercion and obedience by commitment
to the realm of morality and legality, it may well be worth turning
something into an analytic truth -- the stuff of analytic philosophy, after
all,
given by sufficient and necessary conditions and yet expressible in a
proposition that is 'ceteris paribus' in nature, to allow for the undeniable
defeasibility of ALL 'legal' concepts and conceptions.
As for McEvoy's 'cancellation' of the implicature, there are of course,
two types of implicature cancellation: contextual, or the 'it goes without
saying' cancellation, and the one McEvoy provides: explicit "But found this
was one of those times when I did not do what I was obliged to do, as in my
pocket, in addition to my wallet, I had a gun'. Grice did not make much, in
HIS analyses, much of this distinction in the type of cancellation, but it
may well be more important than he thought when we turn to Hart.
More importantly, Grice later concocted 'disimplicature' -- to say less
than you mean -- and it is this that might well apply to the two specimens
above (about 'oblige'/'obligated') as we deal with the alleged
counter-example of a 'usage' which happens to be *another* usage, neither
Hart's nor
Grice's, and one which ascribes factiveness to 'obligated':
McEvoy goes on:
"This kind of usage is too weak a basis to establish that "obliged" is,
always or necessarily, "factive". But even if we were to deem that "obliged"
is "factive", this does not explicate wherein lies the distinction between
it and "obligated": for in many cases of usage to say "I was obligated to
give my wallet" also carries a "factive" implication that one complied."
Applying Grice's disimplicature, the alleged counter-example may be
interpreted as an instance of an utterer the meaning less than than he says --
in
sharp contrast to the utterer who implicates, who, by definition, means
MORE than he says. Grice used to call the former just 'sloppy' uses of
expressions, but thought 'disimplicature' sounded more refined, and right he
was
too!
McEvoy goes on to use the word 'sense' -- which brought to mind Grice and
his Modified Occam's Razor: "Do not multiply senses beyond necessity".
McEvoy: "And the whole argument also fails to explicate the distinction
between
being "obligated" in a legal and in a non-legal [e.g. moral] sense."
I'm not sure we need polysemy here. "Obligation", as the Latin dictionary
entry under 'obligo' reads, is monosemous. It does have figurative
extensions, but these depend on one literal sense, since a figure of speech
(such
as metaphor) can always be accounted as a conversational implicature.
"Legality" does have a different sense from "morality" (hey, they are
different
expressions!), but obligation does not have two senses. (Grice's analysis
would try to provide the grounds for the alleged priority -- valuational
priority, he calls it -- of the moral over the legal, incidentally -- so even
if we are dealing with two expressions with different senses, they may still
be deeper connections within them; more importantly, Grice looked for a
conceptual analysis of the 'moral', as in 'moral obligation' in terms of
higher-order desire: it is by appeal to higher-order desires that an
obligation
'cashes out', to use Grice's expression, in, to use the usual Oxonian
keyword here, "interest". Hart's separability thesis allowed him to rest
content as he was without having to provide these types of concpetual
analyses).
In any case, 'obligation' (even 'obliging' v. 'obligating') may sound
grandiose, and the Oxonian way is best illustrated by sticking with the
conversational modals here -- Grice's favourite being "must", Hampshire's
favourite being"should", and R. M. Hare's favourite being the still colloquial
phrase, "ought to". To ascribe multiple "senses" to these simple colloquial,
conversastional, expressions seems the wrong philosophical way to deal any
alleged counte-rexample that may just rely on the recognition that an
implicature or a disimplicature is at play. UNIGUITY plus IMPLICATURE seems to
do
the job while sticking with parsimony of explanation, when it comes to
Oxonian conceptual analysis. (This uniguity, rather than ambiguity, or
monosemy, rather than polysemy, of 'must' is best expressed in Grice's third
book,
"Aspects of Reason").
McEvoy concludes: "So we still have nothing that shows that Hart provided
an important advance on the (banal) thesis that legal obligations differ
from non-legal ones in that legal obligations are perforce imposed by law
whereas non-legal ones are not perforce imposed by law. JLS' "argument" from
usage is the kind of "analytic" approach that gives philosophy of this sort a
deserved bad name."
If Hart's thesis is regarded as 'banal', perhaps that's because in the
mind of many philosophers, legal philosophy, which relies on a rule of
recognition, such as "Whatever the Queen in Parliament enacts is law."
has a side to it that distinguishes it from theoretical areas of
philosophy like metaphysics and epistemology. Even moral philosophy looks for
something beyond what we may call this 'banal' legality. And I happen to
think
it's post-analytic philosophy that has an even worse name! (whereas
"Milliscent" is a rather pretty name).
Hart brought jurisprudence to the realm of the conceptual analysis that J.
L. Austin and his group had been applied to all sorts of philosophical
problems. Hart also has a deep feeling for the latitudinal unity of what he
was
doing: his editorial work on both Bentham and John Austin has been
exemplary, and his rich legacy was felt profusely both not just within but
without
Oxford, or as he said, 'wesward the tendency strikes its way'!
Cheers,
Speranza
References
Austin, John -- Works, edited by H.L.A. Hart.
Bentham, J. Of Laws in General. ed. H.L.A. Hart. London: Athlone Press.
Grice, Studies in the Way of Words.
Grice, Aspects of Reason.
Hacker, P. M. S. Sanction Theories of Duty, in A.W.B. Simpson, ed. Oxford
Essays in Jurisprudence: 2nd Ser. Oxford: Clarendon Press.
Hart, H.L.A. "Are There Any Natural Rights?" Philosophical Review, 64.
––– "Legal and Moral Obligation," in A.I. Melden, ed., Essays in Moral
Philosophy. Seattle: University of Washington Press.
––– Essays on Bentham. Oxford: Clarendon Press.
––– The Concept of Law, 2nd ed. eds. P. Bulloch and J. Raz. Oxford:
Clarendon Press.
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