[lit-ideas] Re: The Philosophy of Law
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 5 Mar 2015 14:28:32 +0100
It is true that there must be rules for there to be a game, but those rules
also leave a great scope for creativity. Chess would be a boring game
indeed if there was only ''legal' move available at every turn. On most
moves there is a wide array of 'legal' possibilities, which are evaluated
according to a wide range of criteria. Also, great chess players do not
usually 'calculate' moves as far ahead as the amateurs imagine them to be
doing, most of the time they are guided by a strategic sense which is very
close to intuition.
O.K.
On Wed, Mar 4, 2015 at 5:49 PM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:
> Hm... a chess player is hardly likely to be impressed by the observation
> that chess is a game governed by rules. She knows that already, but knowing
> the rules is only a small part of it for her; she is interested in openings
> theory, tactics, strategy, psychology etc. In other words, while the
> observation is strictly speaking correct, it is somewhat terse and trivial.
>
> O.K.
>
> On Wed, Mar 4, 2015 at 5:28 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
> wrote:
>
>> >"[Hart's rule of recognition -- one among two other types of ryles] is
>> a
>> cognitive-epistemic fiction - i.e. it plays no part in how people,
>> including
>> lawyers, recognise what is law from what is not. Far from being "RIGHT",
>> this approach could hardly be more wrong. It rests on a mistaken theory
>> of
>> legal knowledge and a mistaken philosophical theory of the purpose and
>> validity of a 'philosophy of law', when we no more need a "rule of
>> recognition"
>> for law than car-mechanics need one to tell apart what they do from
>> painting.""
>>
>> I haven't explored the philosophy of car mechanics, but I would imagine
>> that if I were a car mechanic, I would know how to paint a car -- Part
>> of
>> repairing a car may well involve _painting_ the car. So, in the
>> philosophy of
>> car mechanics, there may be a sub-chapter for the philosophy of car
>> painting, for example.>
>>
>> This changes the sense of "painting" from the one intended and in a way
>> that misses the point: might I then rephrase - we no more need a "rule of
>> recognition" for law than car-mechanics need one to tell apart what they do
>> from ballet or architecture.
>>
>> Dnl
>>
>>
>>
>>
>>
>> On Tuesday, 3 March 2015, 21:16, "dmarc-noreply@xxxxxxxxxxxxx" <
>> dmarc-noreply@xxxxxxxxxxxxx> wrote:
>>
>>
>> It all sort of started when McEvoy remarked,
>>
>> "Though I did not bother to make explicit the importance of a case like
>> Pilcher for any viable 'theory of knowledge', I think anyone re-reading
>> those old posts might see they present a challenge to anyone who thinks
>> 'law'
>> can be grasped via a Lockean kind of empiricism, or a Cartesian
>> 'intuitionism'
>> etc."
>>
>> This was re: what we might call a Popperian approach to the philosophy
>> of
>> law, that makes uses of W3.3. items, etc.
>>
>> I mentioned that we should not forget the work of H. L. A. Hart along
>> with
>> Popper, "Lockean empiricism" or Cartesian intuitionism". It struck me
>> that
>> Hart (qua member of J. L. Austin's Play Group) made a different
>> headstart,
>> if that's the expression, by looking at ordinary language.
>>
>> O. K. was asking:
>>
>> >So, what did Hart elucidate, that court procedures are really just
>> language
>> >games?
>>
>> Well, yes, and cross-examination has a lot to deal with this -- it's
>> rules
>> of argumentation at play, as Alexy would put it.
>>
>> When I referred to the 'ordinary language' approach as the 'right'
>> approach, McEvoy 'took issue', if that's the expression
>>
>> In a message dated 3/3/2015 2:35:13 P.M. Eastern Standard Time,
>> donalmcevoyuk@xxxxxxxxxxx writes:
>> This is not at all the right approach: and nor is Twining's "How To Do
>> Things With Rules", with its conscious echo of J.L. Austin's "How To Do
>> Things
>> With Words".
>>
>> Well, it may depend on what Twining means by rules. Searle's distinction
>> regulative-constitutive, drawing on Anscombe's brute-institutional may
>> have
>> a lot to do with it. And curiously, J. L. Austin's early theory started
>> with the idea of operative (or performative) which he apparently took
>> from
>> Scots law.
>>
>> McEvoy continues:
>>
>> "There may be some validity in Hart's criticisms of others, including
>> John
>> Austin, but Hart's central notion to his "Concept of Law" is the "rule
>> of
>> recognition""
>>
>> Hart mentions two other types of rules too. And I was referring to the
>> central notion being methodological: to start with what ordinary language
>> says
>> about these things. (Hart was the right person here, since he started his
>> career as a philosopher, but for some reason, doubted he was a good one,
>> and
>> ended up as professor of Jurisprudence, which is not _exactly_ what this
>> subject header reads, "The Philosophy of Law".
>>
>> McEvoy continues:
>>
>> "and the "rule of recognition" not only turns out to be analytically
>> empty
>> (because it rests on a circularity, as MacCormick showed)"
>>
>> A language, when formalised, may need an axiom or two, and these are
>> regarded as analytic and rightly so. After all, Oxford ordinary language
>> philosophy is considered a branch of (Anglo-American sort of style)
>> "analytic"
>> philosophy -- so, bringing in an element of analyticity here need not be
>> looked
>> down as bringing in mere vicious circularity.
>>
>> McEvoy goes on:
>>
>> "but it is pure fiction (to add, perhaps, to the all the fictions
>> Maitland
>> said were the main constituents of English Law). It is a historical
>> fiction
>> - i.e. it cannot be traced in the history of the law;"
>>
>> Well, philosophers are allowed to play this game. They are supposed to
>> postulate 'rational reconstructions' of things. They are into analysis,
>> not
>> into 'history', which is contingent. They are not into the 'genetic'
>> aspects
>> of validation, say -- but in the theoretical basis of validation per se.
>> I
>> am speaking loosely, but this idea that philosophers propose 'myths' of
>> this
>> and that can be traced back to Plato (I know: an author Popper disliked).
>>
>> McEvoy goes on:
>>
>> "but most importantly"
>>
>> And I agree this is the 'most importantly', too:
>>
>> McEvoy:
>>
>> "[Hart's rule of recognition -- one among two other types of ryles] is a
>> cognitive-epistemic fiction - i.e. it plays no part in how people,
>> including
>> lawyers, recognise what is law from what is not. Far from being "RIGHT",
>> this approach could hardly be more wrong. It rests on a mistaken theory
>> of
>> legal knowledge and a mistaken philosophical theory of the purpose and
>> validity of a 'philosophy of law', when we no more need a "rule of
>> recognition"
>> for law than car-mechanics need one to tell apart what they do from
>> painting.""
>>
>> I haven't explored the philosophy of car mechanics, but I would imagine
>> that if I were a car mechanic, I would know how to paint a car -- Part
>> of
>> repairing a car may well involve _painting_ the car. So, in the
>> philosophy of
>> car mechanics, there may be a sub-chapter for the philosophy of car
>> painting, for example.
>>
>> (I once ordered a book on sail painting -- I forget the actual title --
>> thinking it would be an examination of Turner's technique, and it turned
>> out
>> to be a book on how to paint boats).
>>
>> So, we have two keywords here:
>>
>> 'rule' -- and perhaps Hart _is_ misusing the word.
>>
>> 'recognition' -- whatever Hart posited as being the mechanisms of
>> recognition it may well be that the philosopher of law does need to
>> 'recognise'
>> this 'regulation' or that other.
>>
>> McEvoy refers to:
>>
>> >a mistaken philosophical theory of the purpose ... of a 'philosophy of
>> law'.
>>
>> Well, I would think that there are philosophers of law. While the
>> subject
>> header indeed reads "The Philosophy of Law", this is pretty much an
>> abstraction. Rather, what we have is a philosopher of law and another
>> philosopher
>> of law.
>>
>> And we have to recognise them.
>>
>> Hart's concept of law may well be _his_ own idiosyncratic analysis of
>> _his_
>> concept of law, which may not work for others. There is tolerance in
>> analytic philosophy. And McCormick's criticism (in a book which is
>> supposed to
>> give a historical account of Hart's philosophy) may not be the last word
>> about it.
>>
>> Shapiro, for example, at
>>
>>
>> http://www.law.yale.edu/documents/pdf/Intellectual_Life/Shapiro_RuleOfRecogn
>> ition.pdf
>>
>> is never so negative about Hart's results. In the concluding section, he
>> proposes an alternate to Hart's conceptualisation, which he does not
>> dismiss
>> as Oxonian nonsense per se.
>>
>> There may be other keywords when we examine Hart's work. My favourite is
>> that of DEFEASIBILITY, on which G. P. Baker concentrates in his
>> contribution
>> to the Hart festschrift ed. by Raz ("Meaning and Defeasibility").
>>
>> And a full examination of Hart's philosophy of law may bring us back to
>> Peirce! In his review of Holloway's "Language and Intelligence", when
>> Hart was
>> yet a philosopher and not a teacher of jurisprudence he cares to examine
>> what we mean when we speak of words (and laws are made of words) as
>> being
>> 'signs' -- in a footnote, just in passing, he mentions his
>> acknowledgment to
>> participation to philosopher (or one philosopher, specifically) who was
>> a
>> member of J. L. Austin's Play Group.
>>
>> One big advantage that Hart had is that he got to know J. L. Austin _so
>> well_! Not just on Saturday mornings, but Thursday evenings, too!* (*The
>> reference here is to the two groups Austin led, one on Thursdays, before
>> the
>> War, and another on Saturday mornings, after it).
>>
>> It is understood in Hart's approach that the role of the philosopher of
>> law
>> is to provide an analysis of 'legal' concepts as a first step. A second
>> step is to provide an analysis of 'legal' reasoning, and how much of it
>> depends on axioms like the admittedly theoretical and perhaps misnamed
>> 'rule of
>> recognition'. Another keyword may be: POSITIVISM, which was Hart's style,
>> and which, as per a sort of paradigm-shift, has become more of a
>> NATURALISM
>> in today's philosophy of law.
>>
>> Cheers,
>>
>> Speranza
>>
>>
>> ----
>>
>> 'linguistic botany'. It was H. L. A. Hart who, in the 1950s made a
>> concerted effort to use developments in philosophy of language to
>> ‘elucidate’ the
>> nature of law. Hart did so with an enthusiasm for the work of Oxford ‘
>> ordinary language’ philosophers such as J. L. Austin (and other members
>> of
>> Austin's Play Group).
>>
>>
>>
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>
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