What the Segal/Spaeth "Research" Showed

[sent to lawcourts re: what the Segal/Spaeth research proved]
 
Hi Raymond.

The "research" that you speak of showed no such thing. That is only social club lore. If you put something in a headline long enough, people just repeat it.

Really, as to what can properly be said about justices and ideology by political scientists, it is only that an opinion may CONSTITUTE ideology  -- not whether a brain follows it. Brains have no real choice, really, but to follow what they do. No political scientist, therefore, has come close to proving anything remarkable about jurisprudence or the ethical reality of supreme judging. Among the informed, the old debates live on as strong as before, the lead ideas not being quantitatively determined. We aren't a real science anyway; one should not expect this to be a data-driven enterprise. When people want to know what affects cancer, for example, that is predominately data driven. We wait for the latest news. But it is not so for the idea of whether justices use what you call "ideology." There is no true science here; only a language game and, I think, something fundamentally aesthetic.   

If there were to be movements in this "field," therefore, they would not come from empiricists. They would come from philosophy of bias. That's the real problem. That subject has never really materialized.

John Austin, Custom and International Law

[sent to conlaw prof; replying to a post that thinks Austin's system treats custom as "laws properly stated" as opposed to "laws by analogy"]

Doug:

... a good answer (and a good exchange). I think I now understand your position. Because the issue is now framed very well, let me make what should be my final reply. Just a couple of quickies: 

1. as a historical matter, I think you may be in some trouble, at least with respect to "custom" and international law. Didn't Austin maintain, historically, that custom and international law were not "laws properly speaking?" I had always thought that was a standard piece of history, which is why I quoted the Standford Encyclopedia of philosophy. Here is another quote from Britannica, this one from the late 1800s (very close to Austin's work):

"Nowhere does Austin's phraseology come more bluntly into conflict with common usage than in pronouncing the law of nations which in substance is a compact body of well defined rules resembling nothing so much as the ordinary rules of law to be not laws at all even in the wider sense of the term That the rules of a private club should be law properly so called while the whole mass of international jurisprudence is mere opinion shocks our sense of the proprieties of expression Yet no man was more careful than Austin to observe these proprieties." http://books.google.com/books?id=lqMMAAAAYAAJ&lpg=PA355&ots=w3YJWL5RTV&dq=law%20set%20by%20men%20to%20men%20not%20as%20political%20superiors&pg=PA356&ci=63,898,421,181&source=bookclip">The Encyclopaedia Britannica A Dictionary of Arts, Sciences, and General Literature By Thomas Spencer Baynes

2. It doesn't matter that customs becomes "positive law" once the sovereign approves (even tacitly). That doesn't make them "laws properly speaking" in Austin's scheme before they are so legitimated. So I don't see the relevance there. 

3. Here's the kicker. You seem to vest an American significance to something being "law properly said." Remember, Austin considered the Girl Scouts to have "rules" and thus "laws properly said." In an Austinian tongue, the essence of a "law" or "rule" is simply being regimented  in a definite way by a superior. The reason international law failed is that it did not come from a superior, whereas the girl thrown out of the Scouts is regimented by a superior. Please note that this way of speaking has nothing to do with "law" in an American mind (today), which means "government says" and (in some vernaculars) "correct judging" (finding the right answer to the case).  Austin even admits that his system is a PRESCRIPTIVE vocabulary to which others properly-thinking minds should conform (if he is correct), because that was the protocol of this method of "philosophy" before Wittgenstein came along. (Declaratory). So even if you are
successful in getting customs thrown into the category that you want, it would still be "only morality. " So I don't see the practical effect of your labors anyway. In an Austinian model, customs are squat in the legal system until big brother recognizes them.

As to your point that Austin's system doesn't deal properly with British constitutional conventions, I'm sure many would agree. But having a flaw in his system doesn't mean that he meant for those conventions to refer to Mariah's paragraph. And think the history is quite clear: he did not.

As always, regards.

John Austin's System of Law (Lecture I)

[sent to conlaw prof re: John Austin's Sytem of law in Lecture 1]

Here's the basic problem. Americans tend to talk differently about "law" because their traditions (American constitutionalism) are different. So when legally-educated American eyes see someone saying in print "this is law, but this isn't," the mind sees this stark barrier ("this is what counts, that doesn't").  But an English mind traditionally speaks more colorfully about "law" -- God's law, nature's law, man's law, positive law, scientific law, customary law, the law of fashion, the law of nations, "the constitution in the heart," and so forth.  One might say of the English that they needed to impose a grammar that separated "legal laws" from "non-legal laws." And hence comes Austin who does just that using the tradition of analytic philosophy (although admittedly a little early for what we normally call that). His goal is to impose order. He's trying to say, (a) what is properly called "law" (as opposed to just colorful talking); and
(b) which of this properly-called stuff COUNTS.

To accomplish this, he sets up a pedantic taxonomic system. The system RANKS law. There are four categories to the system. They are

Type 1 -- properly called law, commands from a sovereign
Type 2 -- properly called law, commands from a non-sovereign
(type 3) -- improperly called law, considered "close analogy" to Type 2 (international law, morality, and so forth)
(type 4) --  improperly called, law, considered remote analogy to Type 2 (the laws of physics)
God's law -- properly called law, but not from humans.  

He then takes Types 2 and 3 and dumps them under the heading "Positive Morality" and leaves Type 1 all by itself under the heading of "Positive Law." This allows him, in essence, to imposing what would be considered today as a contemporary American mindset. We now know what's in the bag and what's not:  "God's law" is over there out in left field, the law of physics is out there in right field, the positive morality is in center field -- and that leaves good old  "law's law" in the store all by itself.   

Take a look at a graphic that shows this: http://ludwig.squarespace.com/austin

Now the question is very simple. What did he mean to go into Type 2 that didn't go in "close analogy" [what I have called (type 3)]? The answer to this seems clear:

1. It CAN'T be customs (brithishly constitutional or otherwise), because those are already in "close analogy." The Standford Encyclopedia supports me here. See http://plato.stanford.edu/entries/austin-john/

[Key portion: "Positive law should also be contrasted with “laws by a close analogy” (which includes positive morality, laws of honor, international law, customary law, and constitutional law) and “laws by remote analogy” (e.g., the laws of physics). (Austin 1995: Lecture I)."]

2. He SAYS just a few pages later what a law or rule is. The example he uses is a command between a father and son. This "counts" as a law (therefore must be Type 2). He writes:

"And secondly, a command which obliges exclusively persons individually determined, may amount, notwithstanding [Blackstone’s criteria], to a law or rule. For example, A father may set a rule to his child or children: a guardian, to his ward: a master to his slave or servant.  … Most, indeed, of the laws which are established by political superiors, or most of the laws which are simply and strictly co called, oblige generally the members of the political community, or obliges generally persons of a class."
 
Therefore, father commanding child = law = type 2 = bingo. (Interestingly, I  wonder myself whether your Catechism example wouldn't also be Type 2 to a devout believer who is being directly regimented).

The Game of the Liar's Paradox

[sent to analytic]

This is a language game, not a paradox. The indicators "true" or "false" have different units of analysis. One deployment of "true" refers to the sentence, not the thing being reported in it. The other does the opposite. So if you put the sentence in quotes, the "paradox" disappears. (One wonders if it is not syntactical rather than logical paradox). Hence, "this statement is false" asserts that there is a statement, X, that is inaccurate. Saying it is true that "this statement is false" merely says that it is correct to say that X is inaccurate. If it is correct to say that X is inaccurate, that does not make X accurate, it only makes the statement accurate.

Now, I think there are two other games being played here. I think "this statement is false" is being meant (in the game) not to pick out any particular statement, X, but to refer to itself? Is that the problem? So the deployment "this statement is false" means something like "I true a false." This tries to make the speech act like a performative utterance. But even here, however, one can make sense. If one confirms that something is false (like a detective), then one, in a sense, can "true the false" (confirm falsity).  But what one clearly cannot do is "true the non-true" where the sense of true is an operator, not an indicator. That would be like saying "a is non-a" or something.  I think the key to this game is that it deploys truth as an operator when the brain would naturally see it as an indicator. As an operator, two falses = truth. As an indicator, two falses merely mean two falses.

the Value of "Philosophy" after Wittgenstein

[sent to analytic]

Hi Stuart.

Regarding your comments below, I offer the following.

1. One of the reasons that philosophy as a social club may not like Wittgensteinian thinking is purely for reasons of politics and social-group dynamics. The person who ends the club's big business isn't really going to be kept around as its beacon, if for no other reason than it makes for bad self interest.

2. But I think another reason why philosophy as a social club had to turn away from Wittgenstein was simply that no one could replicate his methods. All that people could do was either half-understand his ideas and criticize them, or come closer to understanding and teach them. In this sense Wittgenstein was almost religious (messianic). One had to decipher the word and wonder about the way. Because no one could "pick up the ball" as it were, philosophy as a social group had no choice but at some point to proceed with club activity. Incidentally, that is why this generation of club champions refer to Ludwig's methods as OLP, something which is (a) group ideology; and (b) not a very good understanding of what he was saying. 

3. But I think all of this Wittgensteinian-dissing is really problematic (on the part of the club). Because it seems to me that, even in the wake of Ludwig's discoveries, that philosophy still retains two extremely important missions. One of them it shares with history; the other with religion. Let me explain. The two missions are:

(a) It trains students in thinking exercises, the skills of which become helpful when exported into other disciplines. Just as history "perspectifies" (made that one up!) but is quite inadequate when left unto itself, so too does philosophy give a kind of perspective that is most useful when applied to a real problem. Show me any scientist or intellectual who doesn't understand history or philosophy, and I will show you a narrow mind and an incomplete intellectual/scientist. Now, this might not be true of pure trades. I imagine an accountant doesn't need to know history/philosophy to be a good accountant. But lawyers, judges, political scientists, artists -- you name it -- can benefit. In this sense, philosophy is an exercise room for a certain kind of cognition. 

(b) It carries on its "word." The fact of the matter is that the ideas that most philosophy professors have today in the social club are irrelevant. Or better yet: they are only relevant to themselves (to the group). This is true of all disciplines I think. The vast majority of club members do not produce anything original or lasting -- they just refurbish old ideas and go to conferences. But out of the club rituals -- out of keeping the activity alive -- someday someone spectacular will emerge as the generations pass. And hence, philosophy's story will continue. This is the function that philosophy has that it shares with religion. (I'm not saying that religion actually produces messiahs or anything; I'm saying it believes its group function is to pass on the word so that when critical events happen, the group across time is ready. By similar measure, philosophy as a social club keeps passing its story to people who don't produce breakthroughs, so
that, someday, someone will get the story and produce one) . 

4. Another thing that should be said about Wittgenstein's views about the role of philosophy is that they are not really understood well. Much of it gets lost in the language game. Because if philosophy is only a social club -- like a rotary -- well, then it needs no natural method. You can have people do logic, do experiments, make use of empirical literature, etc., in order to talk about things philosophy traditionally implicates. But if philosophy is a method -- and if Wittgenstein was right that it consists only in "untangling knots" caused by confusion in the language game -- then we have two conclusions: (a)  knot-fixing is still helpful; and (b) it needs to be used outside of ordinary philosophy to do the most good (so we don't have the problem of "animal belief" "I followed my ideology today," for example). And hence, we are now left with the following conclusions:

1. social clubbers caught in a meaningless tradition paradoxically have value (see (a) and (b))
2. social clubbers who are innovating and not doing philosophy-properly-conceived are still doing neat stuff, although it is not "really philosophy strictly speaking"
3. those who are untangling knots in other disciplines where it would be most useful are not numerous enough and in need of recruitment. (Translation to the social club: teach more Wittgenstein please!!!)

(P.S. You know, I don't know why philosophy isn't taught like a professional school, where the last subject you take is where they explain it was all just an exercise).

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
New Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860

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STUART SAID:

However, Wittgenstein does pose a problem for the philosophically
inclined since, if you take him at his word, there isn't a lot for
philosophers to do. Here we are on a list (or in some other venue)
banging back and forth about competing ideas we have about things.
While useful in getting clearer about this or that, what does it
really deliver for us in the end? Unless we're teaching as you are,
what is added to the world? And teaching philosophy so others can
some day teach it, well that seems to pose its own kind of problem,
doesn't it?

At least most other schools of philosophy think they are doing
something, think they are adding to the body of knowledge that
belongs to mankind. Popperians, for instance, think they are telling
scientists how to do their business. DRTsts think they are developing
new logical models which will help in certain fields, I suppose.
Logicians generally think theirs is a real field with a value that
goes beyond learning and playing the logic game. Certain
philosophers, like Searle, think they are guiding elements of the
research community down the right paths. Dennett at least steps into
the area of theoretical science when he endeavors to work with the
researchers in the AI field.