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?)

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