Abstract
In connection with working out Merleau-Ponty’s probable view of law according to the model of language as a system of expressive possibilities, the last chapter dwelt at length on H.L.A. Hart’s theory of rules. This was not due to the fact that Merleau-Ponty was influenced by Hart; in fact, there is no evidence that the former had ever read his Oxford contemporary. Nor was it owing to any sort of reverse influence, for Hart has stated explicitly that he has never read Merleau-Ponty.1 It is, rather, because it would be difficult to overestimate the importance of Hart’s contributions to the philosophy of law, and the impressiveness of his work makes all the more significant the close similarity of his thought to conceiving law according to the model of language. In the best sense of the traditional task of philosophers to “save the phenomena,” he has managed to save that of law from its distortions at the hands of earlier positivists, the American Legal Realists, and pure formalists of various stripes. And he has done so with such lucidity and persuasiveness that his work certainly constitutes a “decisive sedimentation” (S 194), back beyond which it will not be possible to go in the philosophy of law.2
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Notes
This statement appears in a letter to Herbert Spiegelberg in response to the latter’s inquiry on the subject.
Thus P.M.S. Hacker writes that The Concept of Law “has achieved the status of a classic in its field. No serious writing upon the subjects with which Professor Hart dealt can afford to neglect his work, and the key concepts with which he was concerned will, for a long time, be discussed within the parameters he laid down.” “Hart’s Philosophy of Law,” in Law, Morality, and Society: Essays in Honour of H.L.A. Hart, ed. P.M.S. Hacker and J. Raz ( Oxford: The Clarendon Press, 1977 ), p. 1.
On the relations of law and morality, see the references to Lon Fuller above at Chapter V, n.3. On the relation of rules to principles, see Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977 ), as well as his many other writings. On the relation of duty-conferring to power-conferring rules, see J. Raz, The Concept of a Legal System (Oxford: The Clarendon Press, 1970). And on the subject of internal versus external aspects of rules, see Neil MacCormick, Legal Reasoning and Legal Theory ( Oxford: The Clarendon Press, 1978 ).
The Phenomenon of Law,“ in Hacker and Raz, pp. 85–98. For an earlier version of the discussion following, see William S. Hamrick, ”A. Phenomenological Critique of Hart’s Concept of Rules,“ Archiv für Rechts-und Sozialphilosophie—Supplementa (Wiesbaden: Franz Steiner Verlag, 1982), Vol. I, Part I, pp. 175–84.
Lucas, p. 85.
Lucas, p. 91.
Geoffrey Sawer, Law in Society (Oxford: The Clarendon Press, 1965, reprinted 1973), p. 15.
Sawer, pp. 31ff.
Fundamental Legal Conceptions (New Haven: Yale University Press, 1923).
Sawer, p. 44.
Sawer, p. 44.
This is not to deny the possibility of, say, certain non-legal professions adopting legal modes of functioning. Such has occurred recently in the United States in medicine and education owing to the increasing prevalence of malpractice suits as well as the increasing general willingness of Americans to sue each other for almost anything. At the other extreme, and precisely to guard against this sort of proclivity, the emperors of the Manchu dynasty in ancient China turned the Imperial Courts into an institution of terror. For some of the chilling details of the Empire striking back, see Sawer at pp. 56–58. Two consequences of considerable relevance for modern legal systems, however, are that (1) the Imperial reasoning “reminds one of the frequent, usually groundless, worries of English judges lest permitting a new remedy would open wide the floodgates of litigation” and (2), of particular relevance to American courts, “In the case of private prosecution, an unsuccessful prosecutor incurred the penalty which the accused would have borne” (Sawer, p. 57).
Lucas, pp. 91–92.
Sawer, p. 64.
Sawer, pp. 52–53.
Sawer, p. 67. (Italics in the original text.)
Sawer, p. 84.
Sawer, p. 82.
Sawer, p. 25.
Sawer, p. 129.
Sawer, p. 29.
Sawer gives two examples, the second of which is legislative, rather than judge-made law—in addition to Brown v. Board of Education discussed below—namely, Hedley Byrne and Co. Ltd. v. Heller and Partners Ltd.,A.C. (1964) which concerns “liability in torts for failure to exercise reasonable care when giving advice or information” (p. 187) and “the Australian federal Matrimonial Causes Act 1959, which established an Australia-wide code and in doing so changed the divorce law of each of the six States and two federal territories, whose separate laws previously governed the matter” (p. 188). This law apparently did not arise out of popular sentiment for change, but was rather “an enthusiasm of the Attorney-General and of a small group of politicians and lawyers who persuaded Parliament to endorse the proposals and counted, correctly, on sufficient indifference or tepid support in the community to outweigh the vocal opposition” (p. 188).
One could also argue that much of the unpopularity of any Warren Court decisions throughout the late 1950’s and 1960’s stemmed from the fact that the Court was so consistently and, from the perspective of the history of law, a-typically, at the forefront of forging a moral vision not yet shared by the majority of American citizens. Indeed, this seems to me a good part of the meaning of the often-misused expression, “judicial activism.”
Sawer, p. 183. One of those included in this group is Wolfgang Friedmann who provides a number of interesting examples of changes in the form of social life that yield corresponding legal changes. Citing Gustav Radbruch, for example, Friedmann points out how in Germany the civil law embodied in the civil codes had only recognized “legal subjects who conclude contracts with each other by free resolutions,” whereas in the relatively new field of labor law in Germany (at the time of Radbruch’s writing, in 1948) “represents the development of combinations and associations of employers and employees. This leads to a new type of legal institution, the collective agreement, which expresses this new type of social relationship. It is the Natur der Sache, the nature of this new type of social relationship between interest groups, that creates new legal forms, institutions, and procedures.” “Phenomenology and Legal Science,” in Maurice Natanson, ed. Phenomenology and the Social Sciences ( Evanston: Northwestern University Press, 1973 ), II, pp. 352.
Several important U.S. Supreme Court cases in this regard will be discussed below in section 3. In one of them, Frontiero v. Richardson,411 U.S. 677-(1973), Justice Brennan observed that “Indeed, the position of women in this country at its inception is reflected in the view expressed by Thomas Jefferson that women should be neither seen nor heard in society’s decision-making councils.” The dialectic of social and legal change set in motion by the women’s movement is at least far enough advanced to make unthinkable in the United States-for reasons that have nothing to do with traditional Anglo-Saxon prudery-the type of offensive, sometimes pornographic, and even by times violent advertisements that are a commonplace of French culture and which almost justify the perception of it as misogynist.
From the perspective of the last quarter of the 20th-century, Merleau-Ponty certainly was gazing into a clouded crystal ball when he summarily dismissed the question “asked with enthusiasm or with anguish whether man could create life in the laboratory” as an example of “myths” appended to science “which proliferate at its fringes” (S 185–86).
Lucas, pp. 91–92.
H.L.A. Hart, The Concept of Law ( Oxford: The Clarendon Press, 1961 ), p. 12.
It should also be pointed out that, in legal systems such as those of England and in the United States, particular trends of case law can develop, across a pattern of judicial decisions, more nearly like customs than legislation. With reference to Merleau-Ponty here, he writes in Signes that “General DeGaulle can change the laws, but he cannot change the life of France because it is not the affair of only one man, because one sole man always has too simple an idea of the system” (p. 420).
For instance, no one (sane) now believes, as many did once, that tampons are immoral because they bring temptations to enjoy sinful pleasures or because, in some versions, they rob a girl of her virginity. In terms of dead customs, as opposed to taboos, men no longer tip their hats to women upon meeting them in the street, largely because the custom of wearing hats itself has largely died out.
Sawer, pp. 130–31.
Sawer, pp. 137–38.
Sawer, p. 70.
Sawer, p. 10.
Sawer, p. 11. (Italics in the original text.)
Such activities have a long history; they are not limited to either contemporary dictatorships, Nazi Germany, or Franklin D. Roosevelt’s famous “court packing” proposals (1937). In ancient Greece, for example, “suits and prosecutions were often brought as a means of removing a political opponent or obstructing his activities. There was even a class of vexatious litigants called `sycophants’,… their main purpose was to sue as a means of financial or political blackmail, on their own account or as paid agents of undisclosed principals” (Sawer, p. 74).
Sawer, p. 103.
American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,“ in Essays in Jurisprudence and Philosophy ( Oxford: The Clarendon Press, 1983 ), p. 128.
For an earlier version of the discussion following, see William S. Hamrick, “A Phenomenological Critique of Hart’s Concept of Rules,” pp. 179ff.
Gerald Gunther, Cases and Materials on Constitutional Law, 9th edition (Mineola, N.Y.: The Foundation Press, Inc., 1975 ), p. 657.
Gunther, p. 658.
Gerald Gunther, “Foreward: In Search of Evolving Doctrine on a Changing Court: A Model for Newer Equal Protection,” 86 Harvard Law Review 9 (1972).
In Reed,the Court struck down an Idaho statute that provided both a preferential ordering of classes of persons to be administrators of estates and that, in each class, men were to be preferred to women. The legislative reasoning was that men were presumed to be better candidates because of the statistical prevalence of men in the business world. The Court upheld the right to have a preferential ordering of classes of candidates, but threw out the sexual classifications within each stratum.
Gunther, “Newer Equal Protection,” p. 34.
Even today, sexual classifications are not inherently suspect, and therefore entitled to “strict judicial scrutiny.” What role the failure of the Equal Rights Amendment will have on this situation is far from clear. Justice Brennan is said to have regretted the absence of certain other justices on the bench, the votes of which would have enabled the Frontiero opinion to be written in such a way as to obviate the necessity of an Equal Rights Amendment.
Towne v. Eisner,245 U.S. 418 (1918), at p. 425. As a corollary of the variations in meaning which Justice Holmes describes, one can also consider the difficulties which courts encounter in attempting to make sense out of those variations or, rather, in deciding exactly what they want words and rules to mean. Applied to the gender-based cases which we have been analysing, this means appreciating the difficulties and uncertainties involved in trying to agree on what degree of scrutiny, and for what reasons, to apply to gender-based classifications. Thus it is illuminating to read, nine years after Reed,Justice Rehnquist writing for the majority of the Supreme Court that “As is evident from our opinions, the Court has had some difficulty in agreeing upon the proper approach and analysis in cases involving challenges to gender-based classifications. The issues posed by such challenges range… to the appropriate standard of judicial review for the substantive classification. Unlike the California Supreme Court, we have not held that gender-based classifications are `inherently suspect’ and thus we do not apply so-called `strict scrutiny’ to those classifications…. Our cases have held, however, that the traditional minimum rationality test takes on a somewhat `sharper focus’ when gender-based classifications are challenged.” Michael M. v. Superior Court of Sonoma County (California, Real Party in Interest),450 U.S. 464 (1980) at p. 466. For the reasons stated above, it is surely obvious that the phrase, “somewhat `sharper focus”’, is hardly self-evidently clear, and is, in fact, subject to the same variations in interpretation as the other judicial gambits analysed above.
Cf. Neil MacCormick, “legal decisions must make sense in the world and they must also make sense in the context of the legal system” (p. 103).
JHering’s Heaven of Concepts and Modern Analytic Jurisprudence,“ in Essays in Jurisprudence and Philosophy, pp. 268–69.
Southern Pacific Co. v. Jensen,244 U.S. 205 (1917), at p. 222.
The Common Law (Boston, 1881), p. 1.
The Path of the Law,“ in Collected Legal Papers (London: 1920), p. 180.
Lochner v. New York,198 U.S. 45 (1904), at p. 74.
Essays in Jurisprudence and Philosophy, pp. 129–30.
Merleau-Ponty also would have appreciated Holmes’ attack on the excessive individualism embodied in German philosophy that dominated academic law when he (Holmes) began to write in the 1870’s. As Hart puts it, “The great names were those of Kant, Hegel, and Savigny, and the theory’s focal point was the respect, indeed the reverence, due to the individual and the individual will. To this, all that was problematic or in need of justification was referred…. To Holmes, this Willenstheorie seemed either unintelligible or a romantic fiction incapable of explaining even the institutions of Roman law on which it purported to be a gloss. Apart from its detailed errors this whole metaphysical approach appeared simply to ignore the practical aims and exigencies which shape any living body of law.” “Diamonds and String: Holmes on the Common Law,” in Essays in Jurisprudence and Philosophy, p. 279. I shall come back to this theme in the following chapter.
Cited in Hart, “JHering’s Heaven of Concepts and Modern Analytical Jurisprudence,” p. 268.
Precedent in English Law (Oxford: The Clarendon Press, 1977), 3rd edition, p. 27.
Allen v. Jackson (1875), 1 Ch.D. 399 at p. 405; cited in Cross, p. 28.
Cross, p. 30.
Cross, pp. 30–31.
Sawer, p. 105.
Sawer, p. 105. (Italics in the original text.)
American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,“ p. 127.
Precedents,“ 8 Cambridge Law Journal 118,at p. 125; cited in Cross, p. 18.
Cross, pp. 33–34, citing Holmes in Southern Pacific Co. v. Jensen,244 U.S. 205 (1917), at p. 221. It is interesting that Holmes borrows his distinction of the molecular and molar from the more sinister context of a Massachusetts case over which he had presided, Storti v. Commonwealth,178 Mass. 549, 60 N.E. 210, 211 (1901), “in which it was held that a statute providing for electrocution as a means of inflicting the punishment of death was not cruel or unusual punishment within the Massachusetts Declaration of Rights, MASS CONST., pt. First, art. XXVI, simply because it accomplished its object by molecular, rather than molar, motions.” (!) Cited in Lon L. Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart, 71 Harvard Law Review 630, at p. 647 n. 15.
On this and other problems in appreciating the nature and functioning of precedents, see Cross, especially Chapter II, `Ratio Decidendi and Obiter Dictum.“
Cross, p. 10.
Fuller, p. 646.
For an instructive summary of the predicament of judges such as Shaw and Story, see John Mackie, “The Third Theory of Law,” Philosophy and Public Affairs 7, No. 1 (Fall 1977), reprinted and cited in Marshall Cohen, ed. Ronald Dworkin and Contemporary Jurisprudence ( London: Duckworth, 1984 ), pp. 166–68.
Cross, p. 15.
Cross, p. 16.
Dworkin, Taking Rights Seriously, p. 23. Considering the limitations imposed by the less than adequate capacity Merleau-Ponty’s phenomenology has for speaking to Dworkin’s claims, what follows will be only a thumbnail sketch of what is a very important, rich, and provocative jurisprudence. For more comprehensive summaries and critiques of his position, see in general the excellent collection of essays assembled by Cohen. It is, of course, impossible to consider or even acknowledge here all the important issues they raise.
Dworkin, p. 23. The case at issue was Henningsen v. Bloomfield Motors, Inc.$132 N.J. 358, 161 A.2nd 69 (1960).
Dworkin, pp. 116–17.
Cross, p. 216.
Cross, p. 221.
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Hamrick, W.S. (1987). Law and Society. In: An Existential Phenomenology of Law: Maurice Merleau-Ponty. Phaenomenologica, vol 104. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0707-7_7
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