Tags: Ernest Gellner, Gustav Hempel, H.L.A. Hart, John Austin, John Finnis, Joseph Agassi, Karl Popper, Lee Cronk, Ludwig Feuerbach, Napoleon Chagnon, Robin Fox
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I. Dichotomies pose problems for philosophy and the social sciences
In “The Rationality of Science is Partial” in Towards a Rational Philosophical Anthropology (1977) TRPA Joseph Agassi points out the two of the key dichotomies in philosophy, namely between nature and convention and between the “utterly universal” and the “utterly particular.” It is possible to view any”specific society as merely arbitrary” … “because although from the outside a custom in a given society may look quite arbitrary, from within it may look quite rational” (263). Many social institutions, such as organized religions, contain both rational and supposedly irrational elements. They are a mix of the universal and the particular. Because they appear to be a mix of dichotomies, social scientists and philosophers are at a loss to explain them. They then explain one and explain away the other. Explanations typically end in an arbitrary manner.
Thus, many have concluded that religion is rational, but not rational enough (Ludwig Feuerbach). Because social institutions are rational, but not rational enough, various solutions have been applied. Relativism more or less declares the debate useless: everything is particular (266-7). For relativists, one can only describe and not engage in causal reasoning. For functionalism, customs, like religious institutions are “natural” and perfectly reasonable, “though only from within.”
Functionalism presents every institution as 100% conducive to good order. Opposite to relativism, everything may be explained. Functionalism also promotes a kind of quietism. If customs and institutions are rational and perfectly reasonable, “natural,” even Hegelian, then how they are to be improved remains a mystery. Their naturalness speaks against their reform. “How can natural things have errors in them?” one would ask. Of course, any modern biologist would tell you that nature is full of errors. Some of them quite interesting.
Morris R. Cohen on the Place of Logic in Law, Positivism, Deduction, and the History of Science April 18, 2013Posted by Christopher Donohue in History of the Human Sciences, Philosophy of Law.
Tags: Francis Bacon, John Austin, John Stuart Mill, Oliver Wendell Holmes, Sidney Hook, William Whewell
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Morris Raphael Cohen (July 25, 1880 – January 28, 1947) is today a relatively unappreciated philosopher outside some encamped circles in the philosophy of law, intellectual history, and the intellectual study of jurisprudence. Sidney Hook in “The Philosophy of Morris R. Cohen,” in the New Republic, outlined the reasons for this. He noted, “Honored for his candor, his scholarship and critical insight, his philosophical colleagues with a true gesture of piety to the spirit of intelligent dissent recently conferred upon him the presidency of the American Philosophical Association.” But, “he has no following.” Hook continued, “His writings have consequently bewildered those who have sought to understand him only in the light of his negations.” Cohen had little patience for Marxist or overly sociological discussions of law, but he was not a strident legal positivist. He did not think that jurisprudence was a closed system of logical relationships as would a legal formalist. Cohen was however a kind of “reductionist.” Law was logical, and much like the natural sciences, useful due to its regularity and generality. Law, however, much like the more contemporary sciences of non-Euclidean geometry and quantum mechanics, had to be open enough to address the inherent messiness of life. (more…)
Tags: Alexis de Toqueville, Carl Schmitt, Emile Durkheim, Eugen Ehrlich, Georges Gurvitch, Georges Sorel, H.L.A. Hart, Hans Kelsen, Hugo Grotius, Johann Gottlieb Fichte, John Austin, Montesquieu, Proudhon, Ronald Dworkin, Roscoe Pound
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One of the most important developments in the understanding of law, what law is and why it is that law has authority in society, was the move away from natural law jurisprudence, articulated by Cicero, Montesquieu, and by Hugo Grotius in the nineteenth century. Natural law jurisprudence was the idea that law derived its authority due to the perfection and purpose of nature and divinity. Since true law had its origins and its sanction from nature and divinity, outside of society, it stood against whim, convention, custom, and caprice. Laws which were against natural law, against reason or justice, were not laws at all.
Early in the nineteenth century, legal positivism, espousing a narrow definition of “positive law,” or those laws enacted by the State or sovereign in the form of commands, attempted a similar style of reasoning to that of earlier natural law jurisprudence insofar as, like natural law theory, it was both rationalistic and deductive. Legal positivism in John Austin’s prose, considered law to be law (as opposed to morality and custom) if it was a command from a sovereign authority that was coercive. This meant that going against the command of the sovereign brought threat of an “evil.” Law was sovereign, moreover, if it emanated from an authority which was subject to no other, such as a king or parliament, who was habitually obeyed.