As a truly minor player and by a long, long shot not a very creative one, chess is worth playing exactly for its creative aspects. There is nothing to the ontology of chess, there is an awesome amount of respect to be paid to grand masters From: lit-ideas-bounce@xxxxxxxxxxxxx [mailto:lit-ideas-bounce@xxxxxxxxxxxxx] On Behalf Of Omar Kusturica Sent: 05 March 2015 15:29 To: lit-ideas@xxxxxxxxxxxxx Subject: [lit-ideas] Re: The Philosophy of Law It is true that there must be rules for there to be a game, but those rules also leave a great scope for creativity. Chess would be a boring game indeed if there was only ''legal' move available at every turn. On most moves there is a wide array of 'legal' possibilities, which are evaluated according to a wide range of criteria. Also, great chess players do not usually 'calculate' moves as far ahead as the amateurs imagine them to be doing, most of the time they are guided by a strategic sense which is very close to intuition. O.K. On Wed, Mar 4, 2015 at 5:49 PM, Omar Kusturica <omarkusto@xxxxxxxxx<mailto: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<mailto: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<mailto:dmarc-noreply@xxxxxxxxxxxxx>" <dmarc-noreply@xxxxxxxxxxxxx<mailto: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<mailto: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). ------------------------------------------------------------------ To change your Lit-Ideas settings (subscribe/unsub, vacation on/off, digest on/off), visit www.andreas.com/faq-lit-ideas.html<http://www.andreas.com/faq-lit-ideas.html>