[lit-ideas] Re: The Philosophy of Law
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 11 Mar 2015 08:17:41 +0100
Not to be a conceptual analyst's conceptual analyst, but it might be nice
to see a couple of concrete examples that show how legal concepts are
defeasible. I can see legal arguments being defeasible, but less so
concepts.
O.K.
On Tue, Mar 10, 2015 at 11:13 PM, Redacted sender Jlsperanza@xxxxxxx for
DMARC <dmarc-noreply@xxxxxxxxxxxxx> wrote:
> My last post today!
>
> In a message dated 3/10/2015 3:21:25 P.M. Eastern Daylight Time,
> donalmcevoyuk@xxxxxxxxxxx mentions the plague: "Instead that "concept"
> seeks to
> answer another of those "What is?" questions that Popper has cogently
> argued
> are mostly pointless, though they seem to be the occupational hazard of
> many
> philosophers - who seem not to have learnt that the rapid advance of the
> sciences is partly due to them avoiding such questions like the plague.
> (Or
> answering them not in a left-to-right but in a right-to-left fashion: see
> Popper on the difference between left-to-right and right-to-left
> 'definitions'/explications etc.) We should bear in mind that, while we
> may know much
> about the law, we do not know what law is (a similar remark can be made
> about
> many things, including consciousness)."
>
> Popper splits the ambiguous term realism into essentialism and realism.
>
> "Ambiguous" is ambiguous (Grice prefers 'uniguous': Avoid ambiguity like
> the plague and avoid multiplying 'senses' beyond necessity).
>
> Popper uses essentialism whenever he means the opposite of nominalism, and
> realism only as opposed to idealism.
>
> Popper himself is a realist as opposed to an idealist, but he is a
> methodological nominalist as opposed to an essentialist.
>
> For example, statements like
>
> i. A puppy is a young dog.
>
> should be read in the way he calls "from right to left", i.e., as an answer
> to
>
> ii. What shall we call a young dog?
>
> (i) Popper says should NEVER (on no occasion) read in a way that he calls
> "from left to right", as an answer to:
>
> iii. What is a puppy?
>
> This leads us to the complex issue raised by Geary of answer-begging
> questions. KEYWORD: erotetics.
>
> iv. What is the law?
>
> v. The law is what Hart says the law is in "The Concept of Law".
>
> vi. "puppy" =df 'young dog'.
>
> All that because Popper wants to avoid essences as he interpreted them. But
> there are essences and there are essences (cf. Della Rocca, "Essentialism
> and Essentialism").
>
> Some allegedly essential features of law have been identified by Hart.
>
> One is that that modern legal systems combine primary and secondary rules.
>
> And this feature is just one of them.
>
> The list of features that a legal philosophers identifies as essential to
> law is not randomly selected.
>
> The features serve some theoretical purposes, highlighting an aspect of
> law that calls for theoretical explanation and has some significance for
> the kind of theory offered.
>
> But there is nothing question-begging about that.
>
> There may be something ANSWER-begging, as Geary might prefer.
>
> There is this bias that the Oxonians (the Play Group to which Hart, even
> though a senior to J. L. Austin belonged) were anti-theory. But a look at
> the
> outcome of such philosophers as J. L. Austin, H. P. Grice, and P. F.
> Strawson, would be testimony to the fact that they were not "anti-theory".
>
> Hart's conceptual analysis can be seen as gratuitous, but once embedded
> into the theory he wanted his analysis to fit, you get the price!
>
> It may be different with puppies, though.
>
> Recall that for Hart, legal concepts are defeasible.
>
> While to utter,
>
> "A puppy is, ceteris paribus, a young dog."
>
> A ceteris-paribus clause, usually expressed in ordinary language by
> "unless" -- vide "Excluders" -- usually does the trick, and SHOULD do the
> trick,
> if every time we try and analyse a legal concept we agree with Hart that it
> IS defeasible, ceteris paribus -- or non-monotonic if you mustn't!
>
> And the theories where such concepts (now seen as theoretical objects) fit
> in is the role of analytic legal philosophers such as Hart to provide!
>
> Cheers,
>
> Speranza
>
>
>
> ------------------------------------------------------------------
> To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
> digest on/off), visit www.andreas.com/faq-lit-ideas.html
>
Other related posts:
