[lit-ideas] Re: The Philosophy of Law
- From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza@xxxxxxx" for DMARC)
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 11 Mar 2015 08:46:35 -0400
Baker wrote "Meaning and Defeasibility"
And the question arose as to what 'defeasible' applies to.
O. K. says he has no problem with defeasibility as applied to reasoning.
This reminds me of S. Levinson. In his "Pragmatics", he quotes from Grice.
The title of Grice's unpublication that Levinson quotes is,
"Defeasibility, Probability, and Mood Operators".
It turned out that, given Grice's handwriting, what Grice meant was
"Desirability, Probability, and Mood Operators"
So there!
----
Actually, Hart got a reprimand from J. L. Austin (who was his junior) when
he borrowed 'defeasible' from
Hart of course drew the concept (or adjective) 'defeasible' from property
law.
So it is THERE we should look for concrete examples. Although the example
given by Hart is 'contract'. There are others. In fact ALL legal concepts,
are, ceteris paribus, defeasible.
He was reprimanded by J. L. Austin because Hart had the good cheek to say
that we do not "use" 'defeasible' in ordinary language (which to J. L.
Austin carried the implicature, "And which thus would refute all your approach
to Oxonian analysis and your beloved linguistic botany). J. L. Austin said
that Hart was allowed to use 'defeasible' provided it _sounded_ nice.
Hart writes that there is a
"characteristic of legal concepts" "for which no word exists in ordinary
English."
Indeed, it did not exist in Anglo-Saxon law -- if there was one. It may
have existed in Roman law (the Romans roamed and there were constantly
acquiring new properties, and they defeated, too -- In fact, Oxford was Roman,
once).
Hart goes on:
"The words "conditional" and "negative" have the wrong implications"
He means implicatures -- or rather, they 'trigger' the wrong implications.
They may have the wrong _connotations_ (but Hart never paid much attention
to Mill's System of Logic that he had to read for his BA Oxon Lit. Hum).
Hart goes on
"but the law has a word which Hart borrows" ('and never returns,' quips
Geary). He had learned the word while at the Chancery (after leaving Oxford
with his BA Oxon Lit Hum and taking his law examinations and being called a
law. He had a law practice for years).
Hart goes on:
"This is the word [adjective -- Speranza] "defeasible", used of a legal
interest in property which is subject to termination or "defeat" in a number
of different contingencies but remains intact if no such contingencies
mature. In this sense, then, "contract" is a defeasible concept."
Why property lawyers found 'defeasible' apt was very _apt_.
McEvoy's adage is true -- even if he meant it as a joke -- "Some jokes are
true, you know"
"The application of defeasability has long been shown to be defeasible."
"Defeasible" compares to 'heterological', which Russell loved*
---- INTERLUDE ON "HETEROLOGICAL" as it compares to Hart's borrowing,
"DEFEASIBLE"
An adjective is autological (sometimes homological) if and only if it
describes itself. For example "short" is autological, since the word "short" is
a short word. "English," "unhyphenated" and "pentasyllabic" are also
autological. An adjective is heterological if it does not describe itself.
Hence
"long" is a heterological word (because it is not a long word), as are
"unwritten" and "monosyllabic". All adjectives, it would seem, must be either
autological or heterological, for each adjective either describes itself, or
it doesn't. Problems arise in a number of instances, however:
Is "heterological" a heterological word?
no → "heterological" is autological → "heterological" describes itself →
"heterological" is heterological, contradiction
yes → "heterological" does not describe itself → "heterological" is not
heterological, contradiction
----- END OF INTERLUDE
For indeed:
'Defeasible' is defeasible.
Or, if you are a conceptual analyst:
Defeasible is 'defeasible'.
The latter Popper would avoid, since he did not do, due to some conceptual
fear for 'essences', 'right to left'.
Cheers,
Speranza
In a message dated 3/11/2015 3:27:49 A.M. Eastern Daylight Time,
donalmcevoyuk@xxxxxxxxxxx quotes fom O. K.:
>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.>
and comments:
"But the application of defeasability has long been shown to be
defeasible, didn't you know?"
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