[lit-ideas] Re: The Philosophy of Law
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- Date: Tue, 3 Mar 2015 16:16:06 -0500
It all sort of started when McEvoy remarked,
"Though I did not bother to make explicit the importance of a case like
Pilcher for any viable 'theory of knowledge', I think anyone re-reading
those old posts might see they present a challenge to anyone who thinks 'law'
can be grasped via a Lockean kind of empiricism, or a Cartesian
'intuitionism'
etc."
This was re: what we might call a Popperian approach to the philosophy of
law, that makes uses of W3.3. items, etc.
I mentioned that we should not forget the work of H. L. A. Hart along with
Popper, "Lockean empiricism" or Cartesian intuitionism". It struck me that
Hart (qua member of J. L. Austin's Play Group) made a different headstart,
if that's the expression, by looking at ordinary language.
O. K. was asking:
>So, what did Hart elucidate, that court procedures are really just
language
>games?
Well, yes, and cross-examination has a lot to deal with this -- it's rules
of argumentation at play, as Alexy would put it.
When I referred to the 'ordinary language' approach as the 'right'
approach, McEvoy 'took issue', if that's the expression
In a message dated 3/3/2015 2:35:13 P.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
This is not at all the right approach: and nor is Twining's "How To Do
Things With Rules", with its conscious echo of J.L. Austin's "How To Do Things
With Words".
Well, it may depend on what Twining means by rules. Searle's distinction
regulative-constitutive, drawing on Anscombe's brute-institutional may have
a lot to do with it. And curiously, J. L. Austin's early theory started
with the idea of operative (or performative) which he apparently took from
Scots law.
McEvoy continues:
"There may be some validity in Hart's criticisms of others, including John
Austin, but Hart's central notion to his "Concept of Law" is the "rule of
recognition""
Hart mentions two other types of rules too. And I was referring to the
central notion being methodological: to start with what ordinary language says
about these things. (Hart was the right person here, since he started his
career as a philosopher, but for some reason, doubted he was a good one, and
ended up as professor of Jurisprudence, which is not _exactly_ what this
subject header reads, "The Philosophy of Law".
McEvoy continues:
"and the "rule of recognition" not only turns out to be analytically empty
(because it rests on a circularity, as MacCormick showed)"
A language, when formalised, may need an axiom or two, and these are
regarded as analytic and rightly so. After all, Oxford ordinary language
philosophy is considered a branch of (Anglo-American sort of style) "analytic"
philosophy -- so, bringing in an element of analyticity here need not be looked
down as bringing in mere vicious circularity.
McEvoy goes on:
"but it is pure fiction (to add, perhaps, to the all the fictions Maitland
said were the main constituents of English Law). It is a historical fiction
- i.e. it cannot be traced in the history of the law;"
Well, philosophers are allowed to play this game. They are supposed to
postulate 'rational reconstructions' of things. They are into analysis, not
into 'history', which is contingent. They are not into the 'genetic' aspects
of validation, say -- but in the theoretical basis of validation per se. I
am speaking loosely, but this idea that philosophers propose 'myths' of this
and that can be traced back to Plato (I know: an author Popper disliked).
McEvoy goes on:
"but most importantly"
And I agree this is the 'most importantly', too:
McEvoy:
"[Hart's rule of recognition -- one among two other types of ryles] is a
cognitive-epistemic fiction - i.e. it plays no part in how people, including
lawyers, recognise what is law from what is not. Far from being "RIGHT",
this approach could hardly be more wrong. It rests on a mistaken theory of
legal knowledge and a mistaken philosophical theory of the purpose and
validity of a 'philosophy of law', when we no more need a "rule of
recognition"
for law than car-mechanics need one to tell apart what they do from
painting.""
I haven't explored the philosophy of car mechanics, but I would imagine
that if I were a car mechanic, I would know how to paint a car -- Part of
repairing a car may well involve _painting_ the car. So, in the philosophy of
car mechanics, there may be a sub-chapter for the philosophy of car
painting, for example.
(I once ordered a book on sail painting -- I forget the actual title --
thinking it would be an examination of Turner's technique, and it turned out
to be a book on how to paint boats).
So, we have two keywords here:
'rule' -- and perhaps Hart _is_ misusing the word.
'recognition' -- whatever Hart posited as being the mechanisms of
recognition it may well be that the philosopher of law does need to 'recognise'
this 'regulation' or that other.
McEvoy refers to:
>a mistaken philosophical theory of the purpose ... of a 'philosophy of
law'.
Well, I would think that there are philosophers of law. While the subject
header indeed reads "The Philosophy of Law", this is pretty much an
abstraction. Rather, what we have is a philosopher of law and another
philosopher
of law.
And we have to recognise them.
Hart's concept of law may well be _his_ own idiosyncratic analysis of _his_
concept of law, which may not work for others. There is tolerance in
analytic philosophy. And McCormick's criticism (in a book which is supposed to
give a historical account of Hart's philosophy) may not be the last word
about it.
Shapiro, for example, at
http://www.law.yale.edu/documents/pdf/Intellectual_Life/Shapiro_RuleOfRecogn
ition.pdf
is never so negative about Hart's results. In the concluding section, he
proposes an alternate to Hart's conceptualisation, which he does not dismiss
as Oxonian nonsense per se.
There may be other keywords when we examine Hart's work. My favourite is
that of DEFEASIBILITY, on which G. P. Baker concentrates in his contribution
to the Hart festschrift ed. by Raz ("Meaning and Defeasibility").
And a full examination of Hart's philosophy of law may bring us back to
Peirce! In his review of Holloway's "Language and Intelligence", when Hart was
yet a philosopher and not a teacher of jurisprudence he cares to examine
what we mean when we speak of words (and laws are made of words) as being
'signs' -- in a footnote, just in passing, he mentions his acknowledgment to
participation to philosopher (or one philosopher, specifically) who was a
member of J. L. Austin's Play Group.
One big advantage that Hart had is that he got to know J. L. Austin _so
well_! Not just on Saturday mornings, but Thursday evenings, too!* (*The
reference here is to the two groups Austin led, one on Thursdays, before the
War, and another on Saturday mornings, after it).
It is understood in Hart's approach that the role of the philosopher of law
is to provide an analysis of 'legal' concepts as a first step. A second
step is to provide an analysis of 'legal' reasoning, and how much of it
depends on axioms like the admittedly theoretical and perhaps misnamed 'rule
of
recognition'. Another keyword may be: POSITIVISM, which was Hart's style,
and which, as per a sort of paradigm-shift, has become more of a NATURALISM
in today's philosophy of law.
Cheers,
Speranza
----
'linguistic botany'. It was H. L. A. Hart who, in the 1950s made a
concerted effort to use developments in philosophy of language to ‘elucidate’
the
nature of law. Hart did so with an enthusiasm for the work of Oxford ‘
ordinary language’ philosophers such as J. L. Austin (and other members of
Austin's Play Group).
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