[lit-ideas] Re: The Philosophy of Law
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 11 Mar 2015 09:01:29 +0100
Perhaps it would still be more felicitious to say that it is the arguments
that are based on these concepts that are defeasible rather than the
concepts. The law will provide a definition of 'murder' e.g. that is
binding on us to accept, so we can hardly argue about or disagree with the
definition. What is defeasible is an argument that calls for an application
of this concept to a specific case.
O.K.
On Wed, Mar 11, 2015 at 8:43 AM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:
> 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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>>>
>>>
>>
>
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