[lit-ideas] Re: The Philosophy of Law
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 5 Mar 2015 16:29:17 +0100
It's nice to learn that Grice had cats, but did they appreciate his
implicatures ?
For example, "Kitty is poor but honest" ? Or "Tom, have you stopped beating
Kitty" ?
O.K.
On Thu, Mar 5, 2015 at 3:09 PM, Redacted sender Jlsperanza@xxxxxxx for
DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote:
> 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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