Monday, January 3, 2022

"The Most Important Problem of Contemporary Legal Philosophy"

Papers from an international conference last May are now out in Annals:  Belgrade Law Review, with contributions by Pierluigi Chiassoni (Genoa), Tomasz Gizbert-Studnicki (Jaggellonian U, Krakow), Frederick Schauer (Virginia),Torben Spaak (Stockholm), and myself.  My paper, "Back to Hart," can be downloaded here; the abstract:

The essay addresses two different senses of important “problems” for contemporary legal philosophy. In the first case, the “problem” is having forgotten things we learned from H.L.A. Hart, and, partly as a result, encouraging pointless metaphysical inquiries in other directions that take us very far from questions about the nature of law and legal reasoning. In the second case, the “problem” is to attend more carefully to Hart’s views and his philosophical context to think about the problem of theoretical disagreement, and to understand the way in which later commentators have misunderstood his behaviorist (Rylean) analysis of “accepting a rule from an internal point of view.”

Probably the most important claim is the last one about Ryle's influence on Hart's characterization of the "internal point of view."  As I put it in the paper:

Ryle claimed that to be in a mental state is just equivalent to manifesting certain behaviors, or having the disposition to engage in certain kinds of behavior.[1] And I think that Hart takes this over in the sense that he wants to characterize the internal point of view in purely behavioral terms, i.e. people take the “internal point of view” only insofar as they say certain things:   they say you must use these criteria of legal validity, they criticize those who deviate from those criteria, and so on. And, of course, Hart goes out of his way to criticize the suggestion he associates with Alf Ross, that adopting the internal point of view is a matter of having a certain feeling (Hart 2012, 88). But one of the reasons he is doing that is because he’s operating with Ryle’s assumption that it suffices for the ascription of an internal attitude to an agent simply to identify the behavior that the agent manifests.  Ross, to his credit, was less hostile to appeal to actual mental states than behaviorists like Hart, an ironic fact given the effect Hart’s critique had on the reception of Ross in Anglophone legal philosophy.

The problem now is very few of us are behaviorists about the mental,[2] and I think this leads contemporary readers to object that since Hart only says you have to “talk the talk” and “walk the walk” to have the internal point of view, one could reply:   “wait a minute, we know that people can say things and do things but not really mean it!”  So judges who accept the internal point of view in Hart’s behavioral sense might, after all, just be doing it for the money!   In making such an objection, however, we are appealing to the very un-Rylean distinction between what the agent really believes in their private mental theater and what the agent’s actions and talk are presenting to the world.   But this distinction is not one Hart, following Ryle, thinks is available.  If that is right, then we should be skeptical of the idea that a judge could in fact adopt “the internal point of view”  simply by  “talking the talk” and “walking the walk,”  but not really believe any of it, i.e. not feel — there’s that word “feel” — that the rule of recognition is in some sense obligatory, or something like obligatory.  (I say “something like obligatory”, because obligation for Hart is also just analyzed in the terms of the use of certain language and certain behavior [Hart 2012, 82–91].)    The evidence from “wicked” legal regimes, in particular, strongly suggests that the judges really do believe that what they are doing is right, good, worthy, obligatory.   As Pauer-Studer (2020, 205) reminds us, the notorious Nazi judge Roland Freisler stated that, “There can be no divide between a requirement of law and a requirement of morality.  For requirements of law are requirements of decency….”. Other jurists in the Nazi era echoed that view:  “law can only mean the lived morality of decency of a Volk [a people]” (206).  Obviously judges who think of law that way are adopting the “internal point of view” in a morally demanding sense.  If this were just pretense, it is surprising how long they persisted in the pretense even in the face of defeat.   

[1]More precisely, Ryle spoke about sentences about mental states being equivalent in meaning to sentences about behavioral dispositions.   I give this a metaphysical, rather than semantic, gloss in the text.

[2]Some have even denied Ryle was even a behaviorist about the mental, but that revisionary view need not concern us.

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