Jurisprudence blogging 2: Hart

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Murali

Murali did his undergraduate degree in molecular biology with a minor in biophysics from the National University of Singapore (NUS). He then changed direction and did his Masters in Philosophy also at NUS. Now, he is currently pursuing a PhD in Philosophy at the University of Warwick.

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5 Responses

  1. Avatar Will H.
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    says:

    Thoughts:
    I’m not so sure that primary laws and secondary laws are properly named. The set of rules denoted as ‘secondary’ would be less subject to change or alteration. The ‘primary’ laws would then be more fluid. This is counter-intuitive.

    Generality– Does not account for injunctions and the like.

    If they are not moral reasons, in what sense can they be said to be reason giving?
    Economic concerns. People will often do things they consider to be immoral if the price is right.

    Objection 2 (b):
    Scope of authority.
    Quite often, scope will need to be specified by either primary or secondary laws.

    Objection 2 (c):
    Does not account for all activity, notable extortion, bribery, and the like.

    I deal with a lot of codes and standards; a very different body of law than what we are accustomed to thinking of as ‘law.’
    If you look at the above from this view, the criticisms make sense.Report

    • Avatar Murali in reply to Will H.
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      says:

      Thanks for the comments Will,

      Scope of authority. Quite often, scope will need to be specified by either primary or secondary laws.

      I’m not sure how either Hart or I will disagree with this. What you’ve said here is fully consistent with the above theory.

      Economic concerns.  People will often do things they consider to be immoral if the price is right.

      There is a sense in which I am sympathetic to thinking about things in such a way. But I think we have to be careful here. There is a sense in which I can have a prudential reason to do something. In this sense of speaking, all I mean by prudential reason is that it contributes to my welfare.

      There is another way of talking about reasons that gives it a moral overtone. Someone may object that reasons are not about motivation and the even if people are motivated to be self interested at the expense of morality, just because something will benefit me doesnt mean that it therefore gives me reason to do it. I may have to re-read Hart, but when I first read him, I got the impression that he was talking about reasons in the second sense. Of course I could be wrong about this.

      I’m not so sure that primary laws and secondary laws are properly named.  The set of rules denoted as ‘secondary’ would be less subject to change or alteration.  The ‘primary’ laws would then be more fluid. .

      This might turn out to be the case in practice at least in the US where supermajorities ae required to amend the constitution. It is not immediately clear if this is true in all legal systems and at all times.

      This is counter-intuitive.

      Not obviously so. Secondary rules are secondary because they are second order (or about the first order primary rules) Even if it is counter-iintuitive that we call such rules primary and secondary rules, their existence and characterisation is itself not counter-intuitive right? Is this just a terminological problem or is there something deeper going on?

      Does not account for all activity, notable extortion, bribery, and the like.

      It is not as if we count those things as in accordance with the law. Why would I want a account which would count things like extortion, bribery and the like as legal?Report

      • Avatar Will H. in reply to Murali
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        says:

        I like the concept of prudential reason. This eliminates the issue of moral reason driving action, and limits it to one of a range of options.

        That primary laws would be more fluid appears to be a universal. I was really thinking of the Australian Aboriginal culture where there is no standing leader, but tribal elders are convened for various purposes.
        The procedure itself seems to exhibit change only over a long period of time, while primary laws develop rather more quickly.

        The issue of extortion, bribery, et al, would be of proper concern in those instances where their presence is institutional. In many places, greasing the right palms is a matter of good business, or even a means of getting a permit approved. The corollary in the US would be perks to legislators and administrators, and the purchase of $10,000 plates to have lunch with them.Report

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