[lit-ideas] Re: The Philosophy of Law
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 11 Mar 2015 08:43:10 +0100
http://www.umiacs.umd.edu/~horty/courses/readings/hart-1948-ascription.pdf
On Wed, Mar 11, 2015 at 8:42 AM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:
> Actually I have located Hart's essay now so I am beginning to understand
> it better.
>
> On Wed, Mar 11, 2015 at 8:27 AM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
> wrote:
>
>> >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.>
>>
>> But the application of defeasability has long been shown to be
>> defeasible, didn't you know?
>>
>> D
>> L
>>
>>
>>
>> On Wednesday, 11 March 2015, 7:17, Omar Kusturica <omarkusto@xxxxxxxxx>
>> wrote:
>>
>>
>> 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
>>
>>
>>
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