[lit-ideas] Re: The Philosophy of Law
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- Date: Thu, 5 Mar 2015 09:09:46 -0500
McEvoy:
"[W]e no more need a "rule of recognition" for law than car-mechanics need
one to tell apart what they do from ballet or architecture."
Of course the above does not amount to McEvoy's talk of rules or legal
rules even as wrong. But the passages below explore Hart's complex treatment
of rules and legal rules in particular.
Hart writes:
"I should therefore define law as any rule of human conduct which is
recognized as being obligatory. It is
distinguished from a purely voluntary rule of human conduct which is
followed for its own sake: thus if
a man always puts on an overcoat in the winter to avoid the cold he is not
following this course of
conduct because of any sense of obligation."
The above is important in that Hart thought that all previous holders of
the Chair of Jurisprudence (run by the Law Faculty, _not_ Hart's terrain
which was Lit. Hum., as a graduate from the Sub-Faculty of Philosophy, with a
degree in classics).
Something like the overcoat example is used by Grice discussing Stevenson
in 1944 ("Ethics and Language" -- what does the man MEAN by putting on an
overcoat?
Hart:
"It is essential to draw a clear distinction between obedience to an order
or a rule and recognition that the order or rule is obligatory, i.e., that
the order or rule ought to be obeyed. We may obey an order solely because
we fear that if we do not do so we shall incur an evil. In such a case we
are reacting to naked force, and we shall seek to avoid obedience if that is
possible. We have no conative feeling: no sense that we are under a duty of
any nature. On the other hand, if we recognize that a rule is obligatory
our reaction will be entirely different."
This may appeal to the Kripkeinsteian amongst us:
Hart:
"Formalism and rule-scepticism are the Scylla and Charybdis of juristic
theory. They are great exaggerations, salutary where they correct each other,
and the truth lies between them.
Hart was fascinated with properly philosophical questions such as
"What are rules? What does it mean to say a rule exists?"
Hart contrasts between "mere convergent behavior and the existence of a
social rule".
What tis the crucial difference between merely convergent habitual
behavior in a social group and the existence of a rule of which the words
‘must’,
‘should’, and ‘ought to’ are often a sign?
What can there be in a rule apart from regular and hence predictable
punishment or reproof of those who deviate from the usual patterns of conduct,
which distinguishes it from a mere group habit?
Just as grammar studies concepts and relationships appearing in all
languages, so jurisprudence analyzes "those comparatively few and simple ideas
which underlie the infinite variety of legal rules."
A legal system CAN BE SEEN -- by formal positivists -- as, to use Hart's
description, a "closed logical system” in which correct decisions can be
deduced from pre-existing legal rules without reference to
social aims, policies, or moral standards."
Indeed, Positivism’ is, Hart goes on, "often used [in continental
literature] for the general repudiation of the
claim that some principles or rules of human conduct are discoverable by
reason alone”).
‘certain rules cannot be law because of their moral iniquity."
For the record, while Austin loved a rule, Grice didn't. He complained that
Searle's distinction between regulative and constitutive rule is otiose --
and it is! And while in "Logic and Conversation" he would occasionally
speak, ONLY COLLOQUIALLY of the 'conversational rules' that guide the
conversational moves in the conversational game, he was hardly a
quasi-contractualist!
Oddly, J. L. Austin was fascinated with 'rules' only on Saturday mornings.
He wanted the other tutors (To attend, they had to be full-time tutors, and
his junior -- Hart was the exception to the rule --). To prove how
important rules were J. L. Austin invented a game "Symbolo", and some of the
wives
of those tutors would later complain that instead of helping them with
their Saturday morning groceries at the market, their husband were playing
silly games with silly rules about dots and crosses with the White professor
of moral philosophy, and the professor of jurisprudence in active attedance.
That's Oxford for you.
H. P. Grice was never too serious about rules, nor was Oxford. He recalls
this college which had the rules that no dogs were allowed. The Governing
Body met (seeing that the Master had a dog) and the resolution was to deem
the master's dog a 'cat' --. "So we didn't have to change the time-honoured
college rule".
(I take this as Grice never being too serious about rules because he was
very serious about cats -- he had seven of them -- and none of them had been
a dog before!)
Cheers,
Speranza
References
Moles, R. Definition and rule in legal theory: a re-assessment of H. L.
Hart.
Warnock, G. J. "Saturday mornings".
Geary, Rawls on rules.
Grice, -- on a dog deemed a cat in order not to change a time-honoured
mediaeval college rule at Oxford.
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