[lit-ideas] Re: The Philosophy of Law
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Fri, 6 Mar 2015 18:16:21 -0500
How unbehaviourist was H. L. A. Hart?
Was his assumption, 'no psychological concepts without the behaviour that
manifests them', behaviourist enough?
What do we learn from the behaviour of Pilcher and the behaviour of
Rawlins in "Pilcher v Rawlins", 1872?
How can it all be put in Hartian terms? In what ways are these Hartian
terms inferior to the alternate Popperian terms?
Crucially: did Pilcher misbehave?
Where does the 'rule of recognition' for that fit in?
In a message dated 3/6/2015 2:50:25 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes wonders if it is a joke that Hart saw Pilcher.
I brought back Pilcher to the forum since the legal thread all started
when O. K. used a word that brought back Pilcher.
And so wouldn't it be loverly to have Hart consider Pilcher.
So let's reconsider the case. Hart practised law in London (W1, actually)
after leaving Oxford with a BA in Classics. He was considered a good lawyer
though, because a BA Oxon Lit Hum is a good credential for a lawyer.
(Granted, he also took further law examinations before being called to the
bar).
A case study is
Pilcher v Rawlins
which ca be dated 1872 -- i.e. post-Hart. On the other hand, John Locke
could never have heard of Pilcher vs. Rawlins.
THE FACTS.
Seven facts can be brought in.
To talk of 'fact' here is very Hartian in that _de facto_ is opposed to
_de jure_ and Hart would later teach Jurisprudence. This does not mean he can
ignore _the facts_.
Fact 1.
Pilcher is a trustee, holding money on behalf of a beneficiary for
investment.
(Hart would qualify here and say that 'trustee' -- or the _use_ of
'trustee' PRESUPPOSES -- or implicates, as I prefer, a legal rule, and a
primary
one at that!)
Fact 2:
Pilcher is approached by Rawlins, a solicitor, who wants to borrow money.
This is factual enough. Although Hart would say that 'neither a borrower
nor a lender be' may have a tacit appeal to some rule or other -- He loved
to quote from Shakespeare, as when he quote a friend, 'the biggest dreamer
of all' -- a possible quote from Julius Caesar, by Shakespeare -- adapted.
Fact 3:
In 1851, Pilcher advances money to Rawlins in exchange for Rawlins
executing a common law mortgage over the general law land he owns.
This is more than a fact in that it appeals to the 'common law', i.e. a
primary rule in Hart's sense that presupposes a tacit 'recognition rule' --
to the effect that the common law _is_ a law.
Fact 4:
Pilcher receives the legal title as security, subject to an obligation to
repay and Rawlins' equity of redemption. The transaction is legitimate so
far.
But Hart would hardly call it just factual. There is a reference to a
'legal title' which obviously refers to some 'legal rule', and the importation
of 'obligation' can only be understood in the context of 'rules', primary
and secondary. The adjective 'legitimate' is also rule-oriented, for Hart --
if it means, 'legal'.
HOWEVER, Pilcher and Rawlins now try to defraud several others.
"This is wrong," as Hart would have it.
Fact 5:
Pilcher and Rawlins borrow money from Stockdale & Lamb, trustees for other
beneficiaries (able to loam money on interest).
This _seems_ like a brute fact, and no appeal to a rule need be made.
Except that if you borrow, there is a rule (recognised as such) and legal to
the
effect that you have to give back.
Rawlins agrees to give a legal mortgage over the land, but, applying "nemo
dat", he cannot give a mortgage to Stockdale & Lamb because he does not
have legal title.
This is more than a mere fact. It involves a (legal) rule, hence the use
of 'legal title'.
Rawlins prepares an abstract title (list of all documents in the chain of
title, who has owned/leased the land).
-- or 'property' as Hart prefers, since the idea of a 'property' depends
on some 'legal rule' that defines it -- whereas 'land' is neutral in this
respect as in "Columbus LANDED on some land in Central America").
However, Rawlins fraudulently omits to include the 1851 transaction
showing the existing mortgage to Pilcher.
"This is wrong," Hart would say. While Hart was into actions that followed
legal rules, AN OMISSION is surely an action from the legal point of view.
The adverb 'fraudulently' is also legal-rule-oriented, in that it means
that Rawlins is breaching some legal rule.
Fact 6:
In 1856, Pilcher reconveys the land to Rawlins without receiving repayment
from mortgage.
This seems factual enough. Perhaps using the more correct 'property' turns
it into legal-rule-oriented.
However in reconveying without receiving payment Pilcher is in breach of
his fiduciary duties to the beneficiary.
This is TOTALLY legal-rule-bound! Note the use of 'duty' which cannot BUT
make a reference to some 'legal rule' or other.
The fiduciaries have an equitable mortgage over the land.
This is factual enough, unless we use the more proper 'property'.
Fact 7:
Rawlins now executes a mortgage over the land in favour of Stockdale &
Lamb.
This is _de facto_ enough. If we use 'property' instead of 'land' it
ain't.
The result is that Stockdale & Lamb are legal owners, the mortgage having
been executed in their favour.
The result is legal-rule-oriented; hence the use of 'legal owner' and not
just 'owner'. One can be an 'illegal owner' (is that the implicature?)
However, the trustees of Pilcher have a prior equitable interest because
the reconveyance is in breach of trust.
This is legal-rule oriented: note the use of 'breach'. Trust may be deemed
more moral than legal, though.
---- THE ISSUE ----
sub-ISSUES
(a) Does the prior equitable interest prevail against the subsequent
legal interest?
(b) were Stockdale & Lamb bona fide prucharsers for value without notice?
(c) did Stockdale & Lamb have notice?
All talk of 'issue' is legal-rule-oriented. Although journalists overuse
the word 'issue' and apply to almost ANYTHING. ("The issue with Madonna
is...").
---- THE REASONING:
REASONING:
1. There was no actual notice (the title document showing Pilcher's
fiduciary obligations was not seen)
-- Stockdale & Lamb conducted a diligent search of title.
2. Constructive notice: No, a purchaser cannot be taken to have a
constructive notice to something fraudulently removed from a chain of
documents
where there was no reason to suspect that anything was amiss. The
constructive notice does not extend to deeds removed from the chain of title.
-- The result may have been different if Stockdale & Lamb had reason to
suspect wrongdoing (e.g. if the parties were dubious) but everything here
appeared normal.
Only that Hart would object to the use of 'wrong-doing' which has a MORAL
ring to it, whereas we should stick to legal rules and how they are
followed.
Stockdale and Lamb in any case have no reason to suspect wrongdoing.
---- THE DECISION:
DECISION:
Therefore, Stockdale & Lamb take legal title and their interest is not
subject to the Pilcher prior interest.
---------
McCormick sums this up nicely. Hart would know about Pilcher, and Austin
knew that the fact that Hart would understand Pilcher was a bonus for
Austin, qua leader of the Oxford ordinary language 'school'.
Hart's aim was HARLDY to apply the philosophy he head learned at Oxford
(or discussed with Ryle and Hampshire during the war) to legal problems.
YET, McCormick adds, Hart's legal experience in the Chancery's barrister
manipulation with legal words to practical ends (as in the Pilcher vs.
Rawlins -- a famous case study Hart would have come across when taking his law
examinations) was particular relevant to the current concerns of his
philosophical friends, like J. L. Austin and [THIS PHILOSOPHER I LIKE], for
whom
the study of the uses of language in practical as well as theoretical ways
had assumed a new urgency in the aftermath of the Second World War. And thus
Hart's legal experience came to be drawn into 'Oxford ordinary language
philosophy'.
Cheers,
Speranza
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