[lit-ideas] Re: The Philosophy of Law

  • From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
  • To: lit-ideas@xxxxxxxxxxxxx
  • 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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