[lit-ideas] Re: The Philosophy of Law
- From: palma <palmaadriano@xxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 5 Mar 2015 11:08:29 +0200
it is an observation, interestingly, that is irrelevant to playing
On Wed, Mar 4, 2015 at 6:49 PM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:
> Hm... a chess player is hardly likely to be impressed by the observation
> that chess is a game governed by rules. She knows that already, but knowing
> the rules is only a small part of it for her; she is interested in openings
> theory, tactics, strategy, psychology etc. In other words, while the
> observation is strictly speaking correct, it is somewhat terse and trivial.
>
> O.K.
>
> On Wed, Mar 4, 2015 at 5:28 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
> wrote:
>
>> >"[Hart's rule of recognition -- one among two other types of ryles] is
>> a
>> cognitive-epistemic fiction - i.e. it plays no part in how people,
>> including
>> lawyers, recognise what is law from what is not. Far from being "RIGHT",
>> this approach could hardly be more wrong. It rests on a mistaken theory
>> of
>> legal knowledge and a mistaken philosophical theory of the purpose and
>> validity of a 'philosophy of law', when we no more need a "rule of
>> recognition"
>> for law than car-mechanics need one to tell apart what they do from
>> painting.""
>>
>> I haven't explored the philosophy of car mechanics, but I would imagine
>> that if I were a car mechanic, I would know how to paint a car -- Part
>> of
>> repairing a car may well involve _painting_ the car. So, in the
>> philosophy of
>> car mechanics, there may be a sub-chapter for the philosophy of car
>> painting, for example.>
>>
>> This changes the sense of "painting" from the one intended and in a way
>> that misses the point: might I then rephrase - we no more need a "rule of
>> recognition" for law than car-mechanics need one to tell apart what they do
>> from ballet or architecture.
>>
>> Dnl
>>
>>
>>
>>
>>
>> On Tuesday, 3 March 2015, 21:16, "dmarc-noreply@xxxxxxxxxxxxx" <
>> dmarc-noreply@xxxxxxxxxxxxx> wrote:
>>
>>
>> It all sort of started when McEvoy remarked,
>>
>> "Though I did not bother to make explicit the importance of a case like
>> Pilcher for any viable 'theory of knowledge', I think anyone re-reading
>> those old posts might see they present a challenge to anyone who thinks
>> 'law'
>> can be grasped via a Lockean kind of empiricism, or a Cartesian
>> 'intuitionism'
>> etc."
>>
>> This was re: what we might call a Popperian approach to the philosophy
>> of
>> law, that makes uses of W3.3. items, etc.
>>
>> I mentioned that we should not forget the work of H. L. A. Hart along
>> with
>> Popper, "Lockean empiricism" or Cartesian intuitionism". It struck me
>> that
>> Hart (qua member of J. L. Austin's Play Group) made a different
>> headstart,
>> if that's the expression, by looking at ordinary language.
>>
>> O. K. was asking:
>>
>> >So, what did Hart elucidate, that court procedures are really just
>> language
>> >games?
>>
>> Well, yes, and cross-examination has a lot to deal with this -- it's
>> rules
>> of argumentation at play, as Alexy would put it.
>>
>> When I referred to the 'ordinary language' approach as the 'right'
>> approach, McEvoy 'took issue', if that's the expression
>>
>> In a message dated 3/3/2015 2:35:13 P.M. Eastern Standard Time,
>> donalmcevoyuk@xxxxxxxxxxx writes:
>> This is not at all the right approach: and nor is Twining's "How To Do
>> Things With Rules", with its conscious echo of J.L. Austin's "How To Do
>> Things
>> With Words".
>>
>> Well, it may depend on what Twining means by rules. Searle's distinction
>> regulative-constitutive, drawing on Anscombe's brute-institutional may
>> have
>> a lot to do with it. And curiously, J. L. Austin's early theory started
>> with the idea of operative (or performative) which he apparently took
>> from
>> Scots law.
>>
>> McEvoy continues:
>>
>> "There may be some validity in Hart's criticisms of others, including
>> John
>> Austin, but Hart's central notion to his "Concept of Law" is the "rule
>> of
>> recognition""
>>
>> Hart mentions two other types of rules too. And I was referring to the
>> central notion being methodological: to start with what ordinary language
>> says
>> about these things. (Hart was the right person here, since he started his
>> career as a philosopher, but for some reason, doubted he was a good one,
>> and
>> ended up as professor of Jurisprudence, which is not _exactly_ what this
>> subject header reads, "The Philosophy of Law".
>>
>> McEvoy continues:
>>
>> "and the "rule of recognition" not only turns out to be analytically
>> empty
>> (because it rests on a circularity, as MacCormick showed)"
>>
>> A language, when formalised, may need an axiom or two, and these are
>> regarded as analytic and rightly so. After all, Oxford ordinary language
>> philosophy is considered a branch of (Anglo-American sort of style)
>> "analytic"
>> philosophy -- so, bringing in an element of analyticity here need not be
>> looked
>> down as bringing in mere vicious circularity.
>>
>> McEvoy goes on:
>>
>> "but it is pure fiction (to add, perhaps, to the all the fictions
>> Maitland
>> said were the main constituents of English Law). It is a historical
>> fiction
>> - i.e. it cannot be traced in the history of the law;"
>>
>> Well, philosophers are allowed to play this game. They are supposed to
>> postulate 'rational reconstructions' of things. They are into analysis,
>> not
>> into 'history', which is contingent. They are not into the 'genetic'
>> aspects
>> of validation, say -- but in the theoretical basis of validation per se.
>> I
>> am speaking loosely, but this idea that philosophers propose 'myths' of
>> this
>> and that can be traced back to Plato (I know: an author Popper disliked).
>>
>> McEvoy goes on:
>>
>> "but most importantly"
>>
>> And I agree this is the 'most importantly', too:
>>
>> McEvoy:
>>
>> "[Hart's rule of recognition -- one among two other types of ryles] is a
>> cognitive-epistemic fiction - i.e. it plays no part in how people,
>> including
>> lawyers, recognise what is law from what is not. Far from being "RIGHT",
>> this approach could hardly be more wrong. It rests on a mistaken theory
>> of
>> legal knowledge and a mistaken philosophical theory of the purpose and
>> validity of a 'philosophy of law', when we no more need a "rule of
>> recognition"
>> for law than car-mechanics need one to tell apart what they do from
>> painting.""
>>
>> I haven't explored the philosophy of car mechanics, but I would imagine
>> that if I were a car mechanic, I would know how to paint a car -- Part
>> of
>> repairing a car may well involve _painting_ the car. So, in the
>> philosophy of
>> car mechanics, there may be a sub-chapter for the philosophy of car
>> painting, for example.
>>
>> (I once ordered a book on sail painting -- I forget the actual title --
>> thinking it would be an examination of Turner's technique, and it turned
>> out
>> to be a book on how to paint boats).
>>
>> So, we have two keywords here:
>>
>> 'rule' -- and perhaps Hart _is_ misusing the word.
>>
>> 'recognition' -- whatever Hart posited as being the mechanisms of
>> recognition it may well be that the philosopher of law does need to
>> 'recognise'
>> this 'regulation' or that other.
>>
>> McEvoy refers to:
>>
>> >a mistaken philosophical theory of the purpose ... of a 'philosophy of
>> law'.
>>
>> Well, I would think that there are philosophers of law. While the
>> subject
>> header indeed reads "The Philosophy of Law", this is pretty much an
>> abstraction. Rather, what we have is a philosopher of law and another
>> philosopher
>> of law.
>>
>> And we have to recognise them.
>>
>> Hart's concept of law may well be _his_ own idiosyncratic analysis of
>> _his_
>> concept of law, which may not work for others. There is tolerance in
>> analytic philosophy. And McCormick's criticism (in a book which is
>> supposed to
>> give a historical account of Hart's philosophy) may not be the last word
>> about it.
>>
>> Shapiro, for example, at
>>
>>
>> http://www.law.yale.edu/documents/pdf/Intellectual_Life/Shapiro_RuleOfRecogn
>> ition.pdf
>>
>> is never so negative about Hart's results. In the concluding section, he
>> proposes an alternate to Hart's conceptualisation, which he does not
>> dismiss
>> as Oxonian nonsense per se.
>>
>> There may be other keywords when we examine Hart's work. My favourite is
>> that of DEFEASIBILITY, on which G. P. Baker concentrates in his
>> contribution
>> to the Hart festschrift ed. by Raz ("Meaning and Defeasibility").
>>
>> And a full examination of Hart's philosophy of law may bring us back to
>> Peirce! In his review of Holloway's "Language and Intelligence", when
>> Hart was
>> yet a philosopher and not a teacher of jurisprudence he cares to examine
>> what we mean when we speak of words (and laws are made of words) as
>> being
>> 'signs' -- in a footnote, just in passing, he mentions his
>> acknowledgment to
>> participation to philosopher (or one philosopher, specifically) who was
>> a
>> member of J. L. Austin's Play Group.
>>
>> One big advantage that Hart had is that he got to know J. L. Austin _so
>> well_! Not just on Saturday mornings, but Thursday evenings, too!* (*The
>> reference here is to the two groups Austin led, one on Thursdays, before
>> the
>> War, and another on Saturday mornings, after it).
>>
>> It is understood in Hart's approach that the role of the philosopher of
>> law
>> is to provide an analysis of 'legal' concepts as a first step. A second
>> step is to provide an analysis of 'legal' reasoning, and how much of it
>> depends on axioms like the admittedly theoretical and perhaps misnamed
>> 'rule of
>> recognition'. Another keyword may be: POSITIVISM, which was Hart's style,
>> and which, as per a sort of paradigm-shift, has become more of a
>> NATURALISM
>> in today's philosophy of law.
>>
>> Cheers,
>>
>> Speranza
>>
>>
>> ----
>>
>> 'linguistic botany'. It was H. L. A. Hart who, in the 1950s made a
>> concerted effort to use developments in philosophy of language to
>> ‘elucidate’ the
>> nature of law. Hart did so with an enthusiasm for the work of Oxford ‘
>> ordinary language’ philosophers such as J. L. Austin (and other members
>> of
>> Austin's Play Group).
>>
>>
>>
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>
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