[lit-ideas] Re: The Philosophy of Law
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sun, 8 Mar 2015 07:16:35 +0000 (UTC)
This belongs in another thread taking up a post from Omar but is blocked there
due to internet malfunction.
>Such disputes seem to me to have a strong conceptual dimension.>
In what sense? In what way?
We need to be very wary of the "conceptual dimension" as possibly simply a kind
of intellectual talk that adds nothing but a unproven sense that we have
somehow approached the problem via some vital "conceptual dimension" (and
probably are using a mistaken concept of a "concept" to boot). There is a very
real danger this is just a kind of talk - flannel - that we learned to adopt
somewhere along the line or imitated from academese.
What is specifically "conceptual" about the above dispute? As opposed to it
being practical and based on making substantive judgments (not definitional
arguments) as to where legitimate self-defence begins and ends?
When these issues are left to the courts they are resolved by a decision made
in the circumstances of a particular case - they are not solved by way of a
"conceptual analysis" that carries over from case to case.
"Concepts" are merely instruments or vehicles by which we frame what is in
effect a theory: in the case of self-defence, the law works with a theory that
even pre-emptive force may constitute self-defence (and here we may contrast
this theory with a substantively different theory of self-defence i.e. one that
deems pre-emptive force could never be self-defence). Having accepted
pre-emptive force may constitute self-defence, but not deeming that it must be
regarded as self-defence, we then get to the substantive issue of judging in
each particular case whether the pre-emptive force constituted self-defence.
There is no "conceptual" bridge that moves us irrevocably from our concepts to
the substantive conclusion we arrive at in each particular case: it is
substantive judgment, and not the so-called "conceptual dimension", that brings
us to the conclusions we reach.
DonalLondon
On Sunday, 8 March 2015, 2:46, Mike Geary <jejunejesuit.geary2@xxxxxxxxx>
wrote:
JLS asks: "How analytic can legal philosophy get?"
That is an excellent question, but it begs an answer and answers are not within
the authentic purview of Philosophy. Philosophy ASKS, as everyone knows, but
no field of study has ever been developed in the history of humankind into
Asking. No one has ever asked the question: "what does it mean to ask?" i.e.,
to actually answer the questions asked and put an end to them. There is, of
course, the Oxonian tradition of disputing the legitimacy or relevance of an
approach to an answer which leads to further disputes such that answering any
question, not just the philosophical ones, has taken on a bad name. Though the
"Question" has always constituted the primary concern of philosophy, attempts
to raise the primacy of Answers over Questions in philosophy have been notable
in the last 5000 years and most especially since printing was invented thus
permitting the questions to be more easily remembered. The Internet allows all
sorts of incompetent and downright dimwitted souls to comment on any damn thing
they choose to. This has proven a great detriment to serious scholarship.
Witness this very response. Some say that with the ascendance of Answers in
philosophy there has been a noticeable rise in disagreements among philosophers
and the whole enterprise may well collapse in a wimper. Certainly scholars
like JLS have fought against the "urge" to answer the questions proffered by
Philosophers but he is only one brave soul. Where are all the young Turks, I
ask you? Have we lost "Philosophy" to charlatan answerers. There are only a
few hundred core questions about existence and man's place with it. Once those
core questions have been answered, there will be no need for philosophy, nor
for anything. Who will pay you then? Think before you answer.
On Sat, Mar 7, 2015 at 7:25 PM, Redacted sender Jlsperanza@xxxxxxx for DMARC
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
How analytic can legal philosophy get?
Is 'analytic' almost like 'definitional', only different?
In which way a Popperian approach is then just merely _synthetic_?
(KEYWORDS: H. L. A. HART, analytic legal philosophy).
How are analytic truths in legal philosophy made evident by the ordinary
language used by lawyers (as Hart once was)?
In a message dated 3/7/2015 12:55:58 P.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
There is a paper on Popper's W3 theory that I have been reading recently
that interestingly explains how this whole situation has been further
exccerbated because of a set of dogmas from nineteenth century logic that have
been retained by many philosophers despite being overturned by modern logic:
for example, the (false) dogma that there is nothing in a logical
conclusion that is not already there, analytically, in the premises. But I will
leave this for other posts.
We are sort of distinguishing between a problem-solving (evolutionary?)
approach to legal issues (as exemplified by the Pilcher case) and an analytic
approach represented by Hart (and Hohfeld). I shall throw Raz into the
picture!
Raz studied at Balliol and was awarded the DPhil under Hart. He was
Professor of Philosophy of Law at Oxford from 1985 to 2006,
Raz, particularly in his early work, was very clearly under the influence
(one might even argue the spell) of then recent work in deontic logic,
especially Von Wright's Norm and Action.
And where the idea of analyticity (in spite of Popper's criticisms referred
to above by McEvoy in this essay he was recently reading) figures large.
A quick glance through the indexes and endnotes of both Raz's "The Concept
of a Legal System" and "Practical Reason and Norms" would bear this out.
But more than this, in his discussion of Bentham and Kelsen in Chapters VI
and VII of "The Concept of a Legal System", Raz adopts wholesale Von
Wright's notation for distinguishing different kinds of norms for
distinguishing
different kinds of laws (O-laws, P-laws, etc., just as Von Wright
distinguishes between O-norms and P-norms).
Raz even develops the notation further to develop a more sophisticated
taxonomy of laws than Von Wright's of norms.
So in Raz's "The Concept of a Legal System" we get such things as "DS-laws"
- sanction-stipulating laws which make the application of the sanction a
duty - and "MS-laws", sanction-stipulating laws which merely permit the
application of the sanction.
The influence of deontic logic is even more pronounced in Raz's "Practical
Reason and Norms", in which Raz of course first articulates the idea of an
exclusionary reason.
Raz quite explicitly draws on Von Wright's "Norm and Action", Alchouron
and Bulygin's "Normative Systems", and Ross's "Directives and Norms", among
others, in his presentation of mandatory and non-mandatory norms and the
discussion of normative systems in Chapter 4.
Now, perhaps deontic logicians and analytical legal philosophers HAVE
abandoned the 'dogma' referred to by McEvoy in the quote. I know [THIS
PHILOSOPHER I LIKE] wouldn't: trust him to rally to the defense of the
underdogma.
Cheers,
Speranza
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