[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 09:02:29 -0400
Hart's doings and undoings -- and the good of them.
I'm glad O. K. was able to check with Hart's "Ascription" essay where Hart
borrows 'defeasible' from property law (a word of Romance origin, de-feat,
to un-do), and applies it to the concept of a contract.
In a message dated 3/11/2015 4:01:37 A.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes:
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.
Well, in nonmonotonic logic, if you are into symbols (as Grice said -- in
obituary to Strawson, "if it's not worth putting it into symbols, it's not
worth saying it at all"), a special type of conditional is used for the
'defeasible' operator:
Tweety is a penguin
---
Therefore, Tweety flies.
WRONG.
Cfr.
Tweety is a bird
--- Therefore Tweety flies.
DEFEASIBLE:
Tweety is a bird
--- Therefore, unless Tweety is a penguin or an ostrich or a bird that had
undergone wing surgery -- Tweety flies.
---
It's like Popper's puppies, only different
It's called the rightwards wave arrow:
↝
Tweety is a bird ↝ Tweety flies.
The use of "↝" indicates that we IMPLICATE: "unless Tweety is a penguin,
or an ostrich, or has undergone wing surgery".
I agree with the spirit of O. K.'s comment: a concept works best in a piece
of reasoning, or at least in a proposition. So while 'defeasible', as
first used by Hart, applied to a concept such as 'contract', it's THINGS you
say about contracts (propositions) and how the law courts argue or reason (or
the judge reasons) about propositions -- premises yielding conclusions --
that the defeasible character of 'contract' best operates.
It's all Anglo-Norman, of course, since the Anglo-Saxons lacked the
concept.
Cf. defeasance (n.) early 15c., from Anglo-French defesaunce, Old French
desfaisance "undoing, destruction," from desfaire (Modern French défaire)
"to undo, destroy" (see defeat (v.)). Related: Defease; defeasible.
Cheers,
Speranza
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