McEvoy totally (to use Britney Spears's favourite adverb) misses the point of
my post. But then, as Geary prefers, since "your post had no evident point,"
McEvoy should be complimented. The quote by Cantor provided by Helm (this is
NOT Cantor of the infinite paradoxes) is pointing to a parallelism between
Grice and Lakatos. A mandarin, if that is what Grice was called in France, is
someone who has won a 'belt' (this is Asian culture). Lakatos's use of BELT is
a keyword. Under the belt is illegal, above the belt is impossible. Lakatos
argues that mandarins, with belts, cannot be criticized.
Instead, McEvoy refers to a blurb (if that's how they call it outside the EU)
of a reprint of Hart's magisterial essay (for which Hart cared to write a
LOOOOONG 'correction' or postscript), which states that the essay is
essentially right. McEvoy is using 'mandarin' differently. The cohort of the
mandarin will AGREE with what the mandarin (in this case, Hart) says,
REGARDLESS.
Hart always feared Grice -- "he is so much intelligent than I" -- "than me,"
his spy wife would say. "Than you?" -- "No, I mean that YOU should have said
"than I", darling."). But yes, both Hart and Grice belonged to Austin's
Saturday Morning Play Group (along with Hare, Urmson, Strawson, Pears,
Gardiner, Paul, Thomson, and a few others -- if the Saturday was sunny, the
attendance declined). I disagree with Cantor in that this group has to have an
unanimous opinion. Grice (in "Prejudices and predilections") notes that they
were ALWAYS discussing ("which was what made our play group really 'play'").
So, I'm sure Grice disagreed with Hart on the concept of law. In fact, Grice
thinks that 'moral' is what falls under philosophy. Hart was the chair of
Jurisprudence, which is applied philosophy at most. It is true that like Grice,
Hart held a Lit. Hum. (i.e. in classics) MA, but he had also practiced law,
whereas Grice once said:
Philosopher? I'm a practicing philosopher? I never knew you had to practice to
be one!
In any case, the blurb McEvoy refers to states that Hart's essay is "clearly
right". McEvoy takes issue:
"it is not clearly right - and to treat it as such is to treat it as
unimpeachable and of unchallenged prestige. To accept Hart is right we have to
accept a number of highly dubious assumptions: (1) that we need a conceptual
analysis of law (as opposed to the view that our knowledge of law is not, in
any important (epistemic) sense, concept-dependent [the underlying issue being
the role of "concepts" in "knowledge"]; and still less is knowledge of law
dependent on a "concept of law" cf. is our scientific knowledge importantly
concept-dependent? is it dependent on a "concept" of science? [it is a fiction
that scientists did their work only having got clear their "concept" of
science, and it is fiction lawyers used the "concept" of law, in Hart's sense,
before doing their work]). (2) that there is a single "concept" of law (worth
talking about) (3) that a concept of law involves a "rule of recognition" (as
opposed to the view that such a RoR is a fiction both in terms of legal history
and the cognitive processes involved in legal processes) (4) that a "rule of
recognition" that is essentially circular can be properly explanatory (for
circular explanations are unsatisfactory to the point we might say they are
never proper explanations [as opposed to pseudo-explanations]). A reader will
search in vain within Hart's book for an adequate defence of these dubious
assumptions. They will also search in vain for an open and honest account of
the philosophical framework being deployed - one that hinges on the value and
necessity of "conceptual analysis".
Ad (1), if Lakatos is right, ONE thing the play group agreed on is that
conceptual analysis was BEYOND criticism. The same occurred in Einstein's
circle when he was invented his complex theories. Some things are taken for
granted (what counts as evidence, etc.). Popper of course disagrees, but that's
HIS problem.
Ad (2) Hart's concept of 'law' diverges from Grice's concept of 'law'. The Play
Group -- or the mandarins within -- had the power to be able to hold their own
concepts. For Grice, 'moral' is a more important concept than 'legal' -- "even
if we get the idea of, say, a 'moral right', after we have examined the idea of
a 'legal right' -- This epistemic priority does not refute the conceptual
priority of the moral over the legal. So, there are many concepts allowed.
Ad (3) Hart was possibly confused when he used 'rule' and 'recognition' (or as
Geary prefers, the phrase, "rule of recognition"). Hart had reviewed Holloway's
"Language and Intelligence" for the Philosophical Quartery in 1952 and had come
to the conclusion (thanks to Grice whom Hart acknowledges) that one essential
fact about humans is that they RECOGNISE. Smoke may mean fire, but only a
cowboy may RECOGNISE that THAT SMOKE means that there is the enemy nearby. A
similar sequence occurs in "The free state of Jones", with Matthew Connaughey.
He (or his character, Newt Knight) is having a BBQ in the swamps, and his
friends advise him -- 'that smoke will attract the enemy'. His response is
euphemistic.
Ad (4) 'rule of recognition' is Hartian for 'meta-language', and token
reflexivity. As a legal positivist, he needs his system to close, and he thinks
this rule -- that states what counts as a primary rule -- will do the trick. It
is true that the disciples of this mandarin took little care to consider
alternatives.
But I applaud McEvoy's reference to the pseudoexplanation. As R. Paul was
reminding us, "No explantion is better than nonsense!". As a positivist, Hart
KNOWS that some aspects of the legal system are beyond conceptual analysis. He
is only concerned with those which are within PHILOSOPHICAL CONCEPTUAL ANALYSIS
-- why? Who knows! He was after all, chair of jurisprudence at Oxford -- hardly
a philosophy chair. BUT he was always invited overseas (in the EU and the New
World) to speak as a philosopher, so, he started to like the game.
The best pseudo-explanation of Hart's philosophy is in Raz and Baker -- yes,
Baker, who succeeded Grice as philosophy tutor at St. John's --. Baker
contributes with "Defeasibility and meaning," pointing that, by having
defeasibility as its central concept, Hart's scheme is itself defeasible. Which
does not mean 'defeated'.
Cheers,
Speranza
