[lit-ideas] however a paper by Zipurski denied this (the implicature is that Grice does not exist anyway)
- From: Adriano Palma <Palma@xxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Tue, 24 Mar 2015 13:32:41 +0000
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Subject: [lit-ideas] Re: Hartiana
When Grice sent for publication to Harvard University Press (he had a contract
with them, since the "Logic and Conversation" lectures were delivered as the
William James Lectures and the distribution had to be through Harvard College)
he submitted a "Retrospective Epilogue" that makes for a fascinating read.
When Hart's second edition of "The Concept of Law" was published by the
Clarendon Press, Hart composed a "Postscript" in two parts. In fact, he
INTENDED to write a postscript in two parts, and the preliminary part refers
to this second part. Since, like Grice's "Retrospective Epilogue", Hart's
Postscript was also posthumously published, we have to deal with the editor's
footnotes. One reads:
"Hart did not complete the second of the two sections mentioned here".
This is a footnote to Hart's "I consider in a second section the claims to a
number of ... critics that in my exposition of some of my theses there are
some obscurities". He is obviously having in mind Grice's conversational
maxim, "Be perspicuous [sic]; or avoid obscurity of expression".
There is a big difference. Although both Grice's Retrospective Epilogue and
Hart's Postscript make for fascinating reads, since Hart had published the
first edition of The Concept of Law with the Clarendon Press (and not, say,
Harvard University Press), the Clarendon Press, who know what they are doing,
got the brilliant idea of compiling a volume of essays JUST to discuss this
postscript.
It is:
"Hart's Postscript: Essays on the Postscript to `The Concept of Law', edited by
Jules L. Coleman, and the table of contents is as follows -- they managed to
edit 12 excellent essays, which is evidence of the HISTORICAL role of Hart's
legal philosophy within and without Oxford.
1: Joseph Raz: Two Views of the Nature of The Theory of Law: A Partial
Comparison
2: Timothy Endicott: Herbert Hart and the Semantic Sting
3: Nicos Stavropoulos: Hart's Semantics
4: Jules L. Coleman: Incorporationism, Conventionality and the Practical
Difference Thesis
5: Scott Shapiro: Hart's Way Out
6: Andrei Marmor: Legal Conventionalism
7: Benjamin Zipursky: The Model of Social Facts
8: Kenneth Himma: Law's Claim of Legitimate Authority
9: Stephen Perry: Hart's Methodological Positivism
10: Brian Leiter: Realism, Hart Positivism, and Conceptual Analysis
12: Jeremy Waldron: Normative (or Ethical) Positivism
Why is the postscript so important? Well, it clarifies a few points -- for
those who needed it. Hart HAS to grant that he had "originally [written] "The
Concept of Law" with English undergraduate readers in mind". I would add Oxford
undergraduate readers, but he doesn't! At that point, Oxford ordinary language
philosophy was so widespread that you could count on a book published by the
Clarendon Press to be used as textbook in what Grice calls 'redbrick'
universities as well.
In the postscript Hart repeats that his view of the law is a GENERAL one, i.e.
a philosophical one (rather than one that a jurisprudentialist or a legal
thinker might give): "It is general in that it is not tied to any particular
legal system but seeeks to give an explanatory and clarifying account of law as
a complex social and POLITICAL institution with a rule-governed (and in that
sense 'normative') aspect."
Note the use of 'normative' within the right scare quotes: once a positivist,
always a positivist, even if gone 'soft' (Hart found Dworkin's epithet of Hart
as a soft positivist complimentary enough).
Hart's model is based on a paradigm (NOT in Kuhn's sense): the municipal legal
system.
And of course, has as a keyword the concept of a 'legal rule'. His focus is on
what he calls the 'settled law', rather than any good old law: the settled
laws of the municipal legal system, and he takes an effort to clarify what he
calls "an internal perspective of the law", without rendering him for that an
'interpretivist'. Hart had used 'normative' in scare quotes: the adage here by
Hart is:
"Description may still be description, even when what is described is an
evaluation."
He may be having in mind the developments in Oxford ordinary language
philosophy in ethics as put forward by Hare in "The Language of Morals", and by
the time of the postscript, Grice had already delivered the highly influential
"Conception of Value" Paul Carus Lectures, so Hart know what he could do and
what his real friends would say about his enterprise.
Part of the Postscript is concerned with demolishing the simplistic 'semantic
sting', i.e. the idea that Hart is just onto "the meaning of the word "law"".
This gives Hart ample opportunity to explore the semantics and pragmatics he is
committed with, for Dworkin had called Hart, not necessarily in a complimentary
way, a 'semantic legal theorist'. But surely there are variations to the
interpretation of a phrase that sounds simple enough: "the meaning of the word
"law"".
What irritated Hart about being classed as a 'semantic theorist' is that he
was done so along with John Austin! The keyword here would be: semantic legal
philosophy, and Hart being merely a semantic legal philosopher, which he was
not! It seems to be confusing a methodology with the outcome of applying this
methodology to a given field of philosophical speculation.
Those who view Hart as a 'semantic legal philosopher', Hart says, confuse "the
MEANING of a concept [of 'law', or 'justice' -- his example in "The concept of
law"] WITH THE CRITERIA [Witters's follows take notice!] for its application".
"The criteria for the application of a concept with a constant meaning [cfr.
Grice, do not multiply senses beyond necessity] may vary."
"To make this clear", Hart goes Griceian, "I drew in effect the same
distinction between a CONCEPT and different CONCEPTIONS of a CONCEPT".
Grice in fact starts his Carus lectures on the "Conception of Value" with an
extended quote from Hume where this concept-conception distinction is drawn --
and a very useful one too. Hart goes on to quote from Rawls who makes the very
same distinction (Rawls quotes from Grice's "Personal Identity") when in "A
theory of justice" he distinguishes between 'the concept of "justice"' from the
'conception of justice' -- where Rawls explicitly states that he is
"follow[ing] Hart".
Hart goes on to focus extensively on truth, truth-values, and truth-conditions
of PROPOSITIONS. He is having in mind Frege's idea that the meaning of a
concept is best manifested in the proposition in which it occurs. It is Hart's
obvious view, which Grice shared, that it is very important NOT to confuse "the
meaning of 'law' with the meaning of propositions of law".
In replying to another epithet Hart's view received, that of being a
'conventionalist' approach to law, Hart is ready to admit that his theory "is
not a plain-fact theory of positivism, since amongst the criteria of law it
admits VALUES" -- to whose conception Grice had dedicated the whole Carus
Lectures!
Hart seems to regard Dworkin and other critics as vain or hardly humble.
Hart explicitly states: "I think it is quite VAIN" -- the 'quite' is a very
Oxonian turn of phrase -- "to SEEK any MORE SPECIFIC purpose which law as such
serves beyond providing guides to human conduct." Admittedly, one should not
multiply senses of 'vain' beyond necessity. And 'vain' can be interpreted as
"bound to fail", not just 'you-probably-think-this-song-is-about-you' use of
'vain' ("You're so vain").
Hart goes on to minimise the point about the sufficient and necessary
conditions for the conceptual analysis of 'law'. After all he had made the
point of comparing his view with Bentham's and John Austin's (law as coercive
orders). But, as Hart now writes in the "Postscript": "The occasion for legal
COERCION are ... cases where the PRIMARY FUNCTION of the law in guiding the
conduct of its subjects HAS BROKEN DOWN" which should HARDLY happen in a
municipal legal system, and NEVER happen in an ideal municipal legal system.
Hart repeats that "the existence AND AUTHORITY of the RULE OF RECOGNITION",
you like it or not, "SHOULD depend on the FACT of its acceptance by the courts."
Hart was particularly infuriated, but wouldn't show it (the Brahmin he was)
that his critics -- and he was proud to state that his "Concept of Law"
had more converts than critics anyway! -- failed to realise that for Hart, to
use the words in the "Postscript", "the RULE OF RECOGNITION itself, as well as
particular rules of law identified by reference to it" "have a 'penumbra' of
uncertainty'.
A lovely metaphor that Grice should have made use when he titled his British
Academy Lecture" "Intention and Uncertainty". But I grant that "Intention and
the penumbra of uncertainty" might not have pleased ALL Griceians!
Hart notes he is being metaphorical by using scare quotes around 'penumbra'
-- a lovely Latin word.
Hart focuses on rationality. By the time he wrote the Postscript he would have
attended Grice's John Locke lectures at Oxford on "Aspects of reason and
reasoning" and Hart was ready to be explicit about this, when Hart writes in
the postscript that "an informed judicial DECISION can be made when the
composition of an unforeseen case is known and the issues at sake in its
decision can be identified AND SO RATIONALLY SETTLED". This may have to do
with this point about 'arbitrary' and 'non-arbitrary' we were highlighting on
this thread.
If there is a 'penumbra' of uncertainty -- which makes Hart's sort of
conceptual analysis a very subtle one -- Hart was also infuriated (but wouldn't
show it) that he had spent some time in "The Concept of Law" to speak of legal
rules "identified in general terms by the criteria provided by the RULE OF
RECOGNITION" have what Hart calls (after Waissmann) 'open texture' -- i.e.
defeasibility. Like conversational implicatures, legal concepts (and
rules) are 'indeterminate' (Grice sees the indeterminacy of conversational
implicature as 'disjunctional' in nature: "he implied that p, or q, or r, or
...". Hart sees 'defeasibility' as notably express by "unless".
Hart goes back to the issue of 'arbitrariness' and rationality. He is
considering that when the questioni s whether a given rule applies to a
particular case, the law fails to determine an answer either way and so proves
indeterminate. Such cases are not merely 'hard cases', or controversial in the
sense that "REASONABLE and informed laywers may dissagree about which answer is
LEGALLY CORRECT." Rather, they are controversial in the sense that the law in
such cases is fundamentally INCOMPLETE. "They are legally UNREGULATED and in
order to reach a DECISION in such cases courts mst exercise the RESTRICTED
LAW-MAKING function" which Hart calls "discretion" -- so British.
The linguistic philosopher ever, the Poscript by Hart stresses points about
meaning and propositions. After all, "a proposition of law is TRUE ONLY IF in
conjunction with other premisses it follows from principles" -- cfr Grice on
'first philosophy' as the philosophy of 'first principles' -- which both best
fit the legal system's institutional history and also provide the best moral
justification for it."
Hart holds, like Grice, a rather conservative correspondence theory of truth
that had come under the attack of Strawson (the ditto or performative theory of
truth) and Hart keeps referring to the _facts_ ("in many cases moral
facts") which render a proposition true (or in Hart's more sophisticated
parlance, "in virtue of which" a proposition is true.
Hart is very tolerant when it comes to the identification of these 'moral
facts', and here we have his legal philosophy display this tolerance. He writes
in the Postscript: "That there are such objective moral facts is a
controversial philosophical theory" (indeed the subject matter for the
justification of absolute value in Grice's ultra-complex third Carus lecture).
Hart goes on: "If there are no such facts, a judge, told to apply a MORAL
test, can only treat this as a call to the EXERCISE BY HIM of a law-making
deiscretion in accordance with his best understanding of morality and its
requirements and subject to whatever constraints on this are imposed by the
legal system."
Whatever the status of moral judgements may be, whenever the law requires
courts to apply moral standards to determining the law it thereby grants the
courts discretion and directs them to use it according to their best moral
judgement in making what is a new law. This "does not thereby convert morality
into pre-existing law", Hart adds.
Hart does not dwell with many specific examples in the Postscript when one he
treats is the practice, "the mere regular practice of churchgoers removing
hats in church". He loves that practice. It gives him opportunity to go into
other practices. "Plainly a society may have rules ACCEPTED by its members
which are MORALLY INIQUITOUS", so Hart is not just 'into' mere "rules of [this
or that] game". This leads him to state strongly that "there is no IMPORTANT
NECESSARY or CONCEPTUAL connection between law and morality". He gives some
credit to the word 'principle' (as in 'legal principle') but he is worried a
conceptual analysis may prove difficult here: "What ARE legal principles, and
how do they differ from legal RULES?"
Very much like Grice in "Aspects of reason", where he spends a whole lecture on
the explanatory-justificatory distinction, Hart speaks of the two
"uncontroversial features of breadth and desirability from some point of view
which account for the EXPLANATORY and JUSTIFICATORY role of principles in
relation to rules".
Another specific example Hart discusses is the 'statutory rule that a will is
invalid unless signed by two witnesses' -- harmless enough -- and goes on to
explore scenarios where "a rule is defeated" (or defeased, as I
prefer) "in competition with a more important rule in a given case". (Hart
quotes fom Riggs v. Palmer as a case that may refer to what we may call the
'principle' that "a man may not be permitted to profit from his own
wrongdoing".
This principle was held notwithstanding the clear language of the statutory
rules governing the effect of a will to preclude a murderer inheriting under
his victim's will."
A deligthful segment of the first section (he never completed the second
section, Hart never did, alas) is Hart's discussion of Hercules qua judge.
The criticism he is addressing concerns this idea that Hart's conceptual
analysis would require a sort of 'mythical ideal judge', as Hercules was. Hart
likes that. Should the courts be understood as "trying to imitate Hercules"?
"I do not find plausible," Hart writes, "the view that in ... limited exercises
of constructive interpretation judges are best understood as trying to imitate
Hercules's holistic system-wide approach." Which sounds very reasonable, since
Hercules is a demi-god, and a judge necessarily ain't, except by hyperbolic
implicature. The keyword, nevertheless (Geary's favourite
phrase) is: "Herculean judge", and an interesting one at that.
Hart's main concern, as it should, is with that delight for conceptual
analysts: the rule of recognition. Hart writes: "Surely an English judge's
reason for treating Parliament's legislation as a source of law having
supremacy over other sources includes the fact that his judicial colleagues
concur in this as their predecessors have done." There's no 'brute fact' about
this.
The rule of recognition MAY be qualified as 'conventional' -- even, to quote
from Hart, "a mere conventional rule accepted by the judges and lawyers of
particular legal systems."
When it comes to rights and duties, Hart repeats the separability thesis that
is the core of his conceptual analysis: "There are no necessary CONCEPTUAL
connections between the content of law and morality." He knew where R.
M. Hare fit, and where he himself did. Oxford can be very tidy when
distributing 'fields of philosophy' to their practitioners. This does not
preclude, Hart hastens to add, "except where the law" that has been
"identified"
"has itself incorporated moral criteria" -- and moral criteria for some
purpose: "for the identification of the law". These exceptions hardly refute
the conceptual analysis of Hart's positivist approach that "the law may be
identified without ANY REFERENCE to morality."
If he has referred to 'morally iniquitous' legal rules, he goes on to expand
on this: A system may "contain laws (e.g. those relating to the formation and
enforcement of contracts) which may NOT be affected by the general wickedness
of the system and individuals may have relied on such laws in p lanning their
lives or making dispositions of properties". This is a subtle manifestation of
Hart's type of conceptual analysis.
The fact is that the judge "must exercise his DISCRETION". Hart goes on to
distinguish between what Grice would have as the said versus the implicated
(and we have discussed to what extent what is merely implicit can on request
be expanded in some sort of rational reconstruction). For Hart distinguishes
between 'the EXPLICIT settled law' and the "IMPLICIT legal principles" which
may be operative. "The judge must exercise his law-making powers."
"But," again, "he must NOT do this _arbitrarily_ [my emphasis]: that is, he
must ALWAYS have SOME GENERAL REASONS JUSTIFYING his decision and he must act
as a conscientious legislator would by deciding according to his own beliefs
and values."
Hart goes on to play linguistic botany: 'law-making', 'law-giving',
'legislator' -- and finds he can find the game entertaining. It is not false to
say that a judge "makes" the law, for example. When the existing law is clear,
the judge is, to use Hart's phrase, "the mere 'mouthpiece' of a law" -- where
'mouthpiece' is again in scare quotes (It does not mean a piece of the mouth).
Hart goes on to quote some venerable judges: Macmillan, Radcliffe, Reid. In his
decisions, the judge "has an inescaple though 'interstitial'
law-making task. 'Like a consceintious legislator", a judge will rely on "his
sense of what is best" and not on any already established order of priorities
established for him by law. After all, the delegation of of limited
legislative powers to the executive is a familiar feature of democracy and, as
Hart says, "such delegation to the judiciary seems a no greater menace to
democracy".
Cheers,
Speranza
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