05 March 2014

The Somerset case 1772

Re: Somerset v. Stewart, Lofft 1, 98 E.R. 499 (1772).
Some quick readings about conceptions of law at work in the case:

Lawyer Alleyne for Somerset (a slave): slavery is not natural, but "municipal" (conventional); so, slavery cannot cross municipal boundaries (since conventions change from one municipality to another). This seems a perfectly fair conceptual point about the concept of slavery, though it's unclear to me what conception of law is at work; it seems compatible with both conventionalism and pragmatism.

Lawyer Wallace for Stewart (a slave owner): claims there is no law against, and so (given the acceptance of villenage, a sort of share-cropping in feudal times--not nice) there is no case against slavery. This reads pretty straightforwardly as soft conventionalism. 'Soft' because they are prepared to accept the existence of a supporting right even in the absence of positive law.  

Mansfield for the Court: since there is no English positive law on the matter, he reasons that there is no case for holding Somerset in slavery. (Strict conventionalist reasoning.) He considers, but ultimately sets aside, pragmatic considerations about cost and consequence of slavery. He does have a plain fact-y moment where he refers to the law as such.

04 March 2014

Conference: Façades: the Architecture of (In)Authenticity

Façades: the Architecture of (In)Authenticity
7th Annual Philosophy and Art Conference (Stony Brook Univ., Manhattan campus)
March 28th-29th 2014
Venue: Bathhouse Studios, 540 E. 11th St, NYC
More information here.

(I'll be a faculty moderator at this conference. ST)

Here's how the organizers describe the conference: 
The façade—the aspect of a building that both looks at, and is seen from, the street—erects a philosophically and artistically productive ambivalence. Depending on the building’s purpose and comportment, the façade may bear little or no resemblance to the structure within. A façade may clearly indicate the purpose of a structure—such as those of government buildings, restaurants, or grocery stores; they may function as merely surface covering—such as the prescribed façades of residential buildings in some historic neighborhoods; or they may be transparent, "invisible," or feigning—such as the façade of a "speak-easy". As a metaphor, the ambivalence erected by the façade seems to extend to numerous aspects of our engagement with the world. Just as the façade both reveals and conceals the depth of the building behind it, so the face we turn towards others both reveals and conceals our feelings, intentions, and character. We invite artists and scholars to the 2014 conference in order to explore the vicissitudes of the Façade—its place, importance, and structure. Is it pernicious or profitable? Is it necessary or elective? Is it universal or an instance of anthropo-centrism? Do the various structures of façades delimit or facilitate expression or identity formation? Other aspects of the main theme to be considered include: public/professional vs. private/personal features of façades; the relation between the façade and the human face; the politics and ethics of façades.

Further questions include (but, of course, are not limited to):
• The Human Face: what does the face allegedly disclose? Is there a parallelism between psychoanalysis and portraiture? What is accomplished by the self-portrait, particularly in the light of Freud's claim that self-analysis is impossible? Consider also: the beautiful/ugly face; the "virtuous/vicious" face; the head (the eyes, the mouth, the hand) in contrast to the face; the (trans)gendered face; the face of the Other.
• Public & Professional Facades: is there something about our public buildings such that their “faces” should be consistent with their interiors? In other words, does the idea of the public bear a particular relationship to truth? Consider also: user profiles (FBook, LinkedIn, etc); chat-room avatars (trolls, noobs, etc); audience reception; documentation (passports, driver’s licenses, Instagram); the public/professional intellectual/artist.
• Private/Personal & Deceptive Façades: how are our homes structured differently vis-à-vis their facades? Must one have a face? Does one have a right not to be seen, i.e. to be "invisible" or to "wear a mask", so to speak? Is there a socio-political advantage or a cost to "wearing a mask," or having a "poker face"? What does the veiled face allegedly conceal (wedding veil; the hijab)? Consider also: the simulacrum and the original; forgery; ownership and intellectual property; commercial branding; pen-names/ pseudonyms; the doppelgänger; the myth of Janus; the uncanny.
• The Facade and Architecture: What does it mean to talk about the "art" of the facade? How can we understand the relation between a building and its face? And how has the function and meaning of this element changed over the course of architectural history, from classical to modern and postmodern paradigms? Moreover, what does it even mean to talk about the facade in terms of architectural authenticity? 
• The Politics of the Façade: How can a facade be a place of resistance or domination, surveillance or invisibility, subjugation or power? How does one encounter a society's culture or power distributions when encountering these facades? How is one to break away from domineering subjugating facades? Can one ever escape? By what means? Is there the ability to resist and how in the face of cultures that produce the same? Are we only left with imagination to break through these barriers? How do memories and nostalgia play in to the impression of a facade?


26 February 2014

Dworkin: What is law? 1986 1

Notes on Dworkin's 1986 (Law's empire, Harvard UP).

Dworkin is as big a figure in American legal thought as there is. And this is his Big Book. Let me see if I can figure out what his main (famous) views actually come to, and whether or not I share them.

Start (in chapter 1) with what he calls the plain-fact view: "[t]he law is only a matter of what legal institutions...have decided in the past" (7). I suppose this is the legal realist's view (Holmes and the like), but in a nice move D remarks that the critical legal studies people--about as far left as you can go from the far right (?) realist view--are simply drawing radical conclusions from real law. I have to admit that this is a little opaque to me though. Says D: 
They say that past institutional decisions are not just occasionally but almost always vague or ambiguous or incomplete, and that they are often inconsistent or even incoherent as well. They conclude that there is never really law on any topic or issue, but only rhetoric judges use to dress up decisions actually dictated by ideological or class preference. The career I have described, from the layman's trusting belief that law is everywhere to the cynic's mocking discovery that it is nowhere at all, is the natural course of conviction *10 once we accept the plain-fact view of law and its consequent claim that theoretical disagreement is only disguised politics. (9-10)
Maybe it's just a verbal point, but the claim that the people who think the law is nowhere to be found are real law people sounds odd to me. But I suppose if you take them to be looking for real law, that's enough to make them realists of a sort. Okay.

D clearly is right, though, in his observation that lawyers are often realists in practice, but when asked about the goings-on of tricky cases, become nuanced "theoretical-disagreement" types. You can see him angling to get his own interpretive-type semantic-ish theory started.

D thinks critics might complain that he will misconstrue the legal process if he partitions off all but "lawyers' doctrinal arguments about what the law is" (12). Such a critic (sounds lefty) would worry that focusing so high-level and abstract threatens to "obscure--perhaps they aim to obscure--the important social function of law as ideological force and witness" (12). This of course is foreshadowing, but it is instructive: D will not aim to undress the real law and expose its true sordid character. Instead he will take the law into the abstract space of logic and philosophy of language, and explore it as fundamentally as it will tolerate.

20 February 2014

Hart's rules and slave codes 2

Let me add to the sketch from my previous post. 

Primary rules (obligations): here are three--

[1] Principal's rule-- 
  • If the price is P then Q; otherwise not-Q 
  • [gloss: first-order universally quantified, conditional mood; Q is an agent action]
[2] Agent's rule-- 
  • If the price is P do Q; else not-Q 
  • [gloss: first-order universally quantified, imperative mood; Q is a state]
[3] Slave statutory rule-- 
  • If any slave shall strike any white person then R 
  • [gloss: first-order universally quantified, general conditional; R is a court officer's action]
Secondary rules (regulations): here is one--

[4] Slave statutory recognition rule-- 

  • Premise 1: If "If any slave shall strike any white person then R" is S then T 
  • [premise 1 gloss: second-order universally quantified, general conditional; S is a recognition-mark, T is a recognition-act]
  • Premise 2: "If any slave shall strike any white person then R" is S
  • [premise 2 gloss: predication]
  • Therefore: T
  • [conclusion gloss: assertion]
  • [argument gloss: modus ponens]
Comment 1. Recognition-mark S is a unifier and rationalizer of the legal system in which it is a part. As Hart points out, such marks are what make a set of statutes not merely a set of primary rules but an actual legal system.
Comment 2. Is there any way to examine S? Yes and no. It can be examined by a Hart-style secondary rule of change (legislative review and repeal) or a Hart-style secondary rule of adjudication (judicial review). But there are two issues. First, any such review process runs the risk of reproducing whatever social pressures led to the recognition pressure in the first place. If primary obligations about how to control slaves were a product of custom and prejudice, lawmakers may very well be responding to those same customs and prejudice. What would prevent that from occurring? And second, the recognition rule, according to Hart, is both supreme and ultimate---there is none higher, and no other steps follow it. Unless there's a federal authority. Such an authority (its constitution, actually) would serve as an a priori constraint on S. But in the colonial era that authority is remote. And even if such an authority exists (as of course it does post-1789) what ensures that it will be shielded from those pressures? (The classic answer is the Bill of Rights; is that sufficient?)

18 February 2014

Hart's rules and slave codes 1

I have three ideas, all a bit rough: 
  1. Hart's distinction between primary and secondary rules can shed interesting light on the question of contractual obligations within any legal system that contains slaves.
  2. The two sets of rules are phase-sensitive: that is, there's a diachronic aspect that is expressible in the model theory (or at least the metalogic) of such a legal system.
  3. There's some sort of metaphysical constraint on conditions of legal action that's running around the slave codes---not just the obvious one about people not being ownable, but a more secular (deontic?) one; not there yet though.

Here are some expansions. First a bit on properties (item 3), followed by a bit on phases (items 1 and 2).

The deontic problem: what is the logic of obligation in both the moral and legal contexts of principals' actions? This goes directly to the primary basis of ex persona domini obligations, since it lies at the presumptive point of hand-off.

Principals act: moral action when act has F; legal action when act has G. Feature F places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (moral authority)). Feature G places an obligation on the principal, as well as corresponding obligations on others (disputant, arbiter (legal authority)). In both kinds of contexts, the basic condition of action is the capacity to perform an act with F (the moral condition) and with G (the legal condition).

Antebellum legal cases are problematic in an obvious way, since some nominal humans are also nominal property, and thus violate a legal exclusion: no property can do F or G, while every human can do F and G

The remedy sounds clear and simple. Begin by acknowledging, restoring, and protecting the F/G capacity of every nominal human---that is, take humans to be legal and moral principals---and thus achieve a legal philosophical remedy. Introduce the concept of legal personhood (or at least principal-hood), and specify the criteria for satisfying that concept. Then work on the metalogic of federal law by amending the Constitution (the equal protection and due process clauses of the Fourteenth Amendment) so as to provide regulating principles for the constitutionality of statutory law (much as the first ten amendments are). A legal logical remedy is thus achieved. Introduce satisfaction conditions for a given body of law (model theory) and specify criteria of entailment for that body of law (proof theory).

Now on phases and rules:

Primary rules of obligation, to the principal, are universally quantified and hence essentially hypothetical. The agent takes them in the imperative mood, complete with the pragmatic aspects one would expect. In this form, they can be either hypothetical or categorical, depending on their teleological character. A contract is thus possible because of the confluence in an historical setting of logical-form facts and pragmatic facts. 

Secondary rules, to the jurist, are universally quantified and hence essentially hypothetical, but they regulate the predicates occurring in the primary rules. They thus take those predicates as arguments, issuing second-order rules. Moreover, they treat primary rules as existential and thus non-hypothetical, even as they themselves are hypothetical and universal.

Legal models may thus be said to have logical phases of a sort. During the primary dominant phase (when a given rule has primary character) the model has a very weak existential load, given their hypothetical and/or categorical character. But during the secondary dominant phase the primary takes on a significant existential load, while the secondary remains only weakly existential. Models containing such rule statements will vary widely, since satisfying those rules will be highly contingent on what phase dominance is occurring when the model is captured.

This can be walked back through slave statutes. The colonial period is highly unstable with respect to obligation rule phasing, given the outsized sociological facts around slave customs and the social dimensions of race relations; it is difficult to imagine otherwise. But even with the eventual ratification of the US Constitution and the institution of a federal framework for contract law, it remains an empirical question whether the rule phasing I am describing stabilizes. And after all, an eventual civil war settled the first batch of legal questions about slaves as rule phasing sputtered along, prima facie evidence for dramatic phase instability.


(An easy and obvious speculation: the emergence of Jim Crow laws during the segregation era is evidence of persistent phase instability in American law.)

Holmes on agency and contract 1891 5

The Hobbes/Holmes issues remain at the center of my thinking about contractual obligation. The Leviathan passage (chapter 16) is surprisingly complicating: while the master-family relation is surely natural, if anything is, and the agent negotiating the contract on the author's behalf is surely conventional, if anything is, the question arises whether the master-slave relation is natural or conventional. 

It is theoretically unstable at best, given the children-madmen-fools reasoning, since no slave is by that fact incapacitated, not even transiently so. Children pass through developmental phases, madmen are presumably seized from time to time by their madness, and fools are prone to folly qua fools (whatever that means). But it is not obvious what to infer from the slave condition as such vis-a-vis the master relation. 


Some slaves are fathered by their masters; some slaves are raised as children (in some sense) in the household with members of the master's family; many, most perhaps, will have given their labor to help make and sustain those intimate living arrangements that constitute the life of the master's family. Though there is theft, rape, and enslavement at the basis of all of this---all unconscionable and terrible, to be sure---it is still a kind of natural relation (in the sense of being extra-institutional). 

So the question for the Hobbesian account: is the slave a pre-condition for the institutional arrangement that is then codified? Or is the slave a consequence of the domestic arrangement that is then codified?

14 February 2014

Quine's _Elementary logic_

The little logic textbook I wish I'd written was published in the 1940s by Quine. I'm using it to teach logic this semester (along with supplemental texts that do more formal things). I figured it would be useful to create screencasts on my iPad as I walk through the book. Those will be parked at my YouTube channel, and embedded at The Smokr Tumblr, the media-robust sibling to this journal. Here's a link to the first video, if you're interested.