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.

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?)

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?

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.

Slave code sources 1

A short reading list on slave codes.

[1] Ingersoll, Thomas N. 1995. Slave codes and judicial practice in New Orleans, 1718–1807. 13 Law & Hist. Rev. 23. 

[2] Thompson, Joseph Conan. 1993. Toward a more humane oppression: Florida's slave codes, 1821-1861. 71 Flor. Hist. Q. 324.

[3] Schnapper, Eric. 1983. Perpetuation of past discrimination. 96 Harv. L. Rev. 828.

[4] Tahmassebi, Stefan B. 1991-1992. Gun control and racism. 2 Geo. Mason U. C.R. L.J. 67.

[5] Nicholson, Bradley J. 1994. Legal borrowing and the origins of slave law in the British colonies. 38 Am. J. Legal Hist. 38.

[6] Mills, Michael P. 2001-2002. Slave law in Mississippi from 1817-1861: Constitutions, codes and cases. 71 Miss. L.J. 153.

[7] Flanigan, Daniel J. 1974. Criminal procedure in slave trials in the antebellum South. 40 J. Southern Hist. 537.

[8] Watson, Larry Darnell. 1980. The quest for order: Enforcing slave codes in revolutionary South Carolina, 1760-1800. PhD diss., U. South Carolina.

[9] Wiecek, William M. 1977. The statutory law of slavery and race in the thirteen mainland colonies of British America. 34 William and Mary Q., Third Series, 258.

[10] Morris, Richard B. 1954. The measure of bondage in the slave states. 41 Miss. Valley Hist. Rev. 219.

[11] Fede, Andrew. 1984. Toward a solution of the slave law dilemma: A critique of Tushnet's "The American Law of Slavery." 2 Law Hist. Rev. 301. 

[12] Blanck, Emily. 2002. Seventeen eighty-three: The turning point in the law of slavery and freedom in Massachusetts. 75 New Engl. Q. 24.

[13] Bush, Jonathan A. 1993. Free to enslave: The foundations of colonial American slave law. 5 Yale J.L. & Human. 417.

Slave codes and obligation papers

I can't tell how many papers this will be, but five topics are attracting five clusters of argument in my notes and my thinking:

1. Ex persona domini obligations. [Holmes]
2. Uncertainty in rules of obligation. [Hart]
3. Stasis in rules of obligation. [Hart]
4. Inefficacy/inefficiency in rules of obligation. [Hart]
5. Thrasymachus-style power arguments and the slave codes. [Plato]

I'll see if I can get 5000 words in good enough shape to show around by the weekend.

Thrasymachus and the slave codes 2

Continuing in a hypothetical mode in reading slave codes, thinking about Thrasymachus, and turning to justice questions...

How can justice-is-the-might-of-the-stronger be made intelligible? Especially if you think, as I do, that Socrates is right, and that he is a champion of reason, and he is not an asshole or thinks slaves ought to be subjugated, or anything like that. But you can see Thrasymachus' view as being a heroic defender of the underdog if you regard the slave as a kind of powerful figure. The slave is not the victim of power but the possessor of power. Clearly the slave codes are written to counterbalance the slave's power, after all. You don't fear something unless it has power. And if nothing else, the slave has the power to provoke fear. But the slave also has power to create mischief. A slave revolt is at least that. A kind of terrorizing power. Of course it could be more than that if the slave can set fires and commit murder, all of which certainly happened during uprisings.

So in that sense Thrasymachus' position can be understood more sympathetically. If the power of the stronger is de facto, then in a slave-owning society the owner has it because they control the whereabouts of the slave. The legislator has it---in a way---but that would be de jure; I suppose the same is true of the sheriff. The slave has it because of the nature of the threats they pose.

One can read Thrasymachus as saying that whoever actually has the power ought to retain that power, and that that is how we decide what is just. It's them carrying out the dictates of their power---essentially, whatever their whims are. A tyrannical theory of justice. But you can regard Thrasymachus as endorsing the efforts to unseat power, and thus endorse the power that the weaker have to overthrow the stronger. It sounds contradictory---I guess it is---better to think of the weak force as still being a kind of force, and that in the struggle it becomes strong (or at least stronger) and that would be the fulfillment of justice. We can think of this as a kind of Thrasymachus-ish theory of justice as applied to the Negro slave as endorsing the effort to unseat power and replace it with their own power. If that's a consistent reading we can take Thrasymachus as endorsing slave revolts. And isn't this after all some of the early Hobbes? Maybe Foucault as well. Thrasymachus (and Plato) predate(s) both, of course. 

But if that is what justice demands---the rising up of the weak over the strong so as to become strong? Then I think it's kind of interesting. The chief complaint, though, would be the complaints that Socrates actually has. 

He has two kinds: the first is conceptual, that the concept of justice precludes any concept of de facto strength, let alone the efforts to achieve de facto strength. So the doctor is never acting to make themselves advantaged, but is always acting on behalf of the patient. That after all is the function of a doctor---same thing. 

The other kind of complaint is something like, if you make justice parasitic on de facto strength, then you are (in a sense) limiting justice to what the strong can achieve. (Is this in Book 1? I'm not sure.) So not only are you running afoul of the concept of justice, but you're also shortening justice. So if the slave revolts, and takes over the municipality (?) in which the plantation is located, would we say of that that that is justice? But then you have the problem, that that is only as good as the revolting slaves' ability to hold the fort. In a sense justice would be achieved only to the extent that the slaves could withstand whatever counter-revolt efforts occurred. 

Whereas on the kind of view that Socrates endorsed there would be some sort of appeals process. If justice has been flouted, then there would be an appeal one could make. This is the modern understanding of justice. You can make a case to a higher body and they could rule on the merits, and so on. But justice-as-strength does not account for that. 

But I'm not now sure that Socrates makes anything like this sort of objection in Book 1. It sounds more Kantian actually. But I can't imagine that Socrates does not have something like this in mind. Thrasymachus could respond to this last kind of objection and say that if you understand the legislator as having a kind of strength (as in the strength of a ruler) then the goal of a successful, full uprising by a slave not just to have sufficient guns and firepower to shoot anyone who comes close by the plantation, and thus achieving justice by securing the plantation due to the force of the weapons being used, but it would also be to take over the state house, and becoming a legislator---in a sense, becoming a tyrant. And who is above a tyrant? You can say whatever you like about courts and due process of law and all that, but in a tyrant state, those institutions (and everything else) will serve the tyrant. And so the ultimate justice would be to become the tyrant, rather than being able to bring a case to court. (I remain unsure whether Socrates makes this kind of point.) But if this complaint were made, I imagine Thrasymachus could make the kind of point like I just described. 

Thrasymachus as justice theorist for the slave: once you pose the question this way, then the Socratic line of reasoning becomes kind of irritating. Because what he is doing is he is presenting obstacles to the success of the one you are rooting for. And every modern reader is going to know how the story ends. 

Thrasymachus and the slave codes 1

Let me take a brief left turn (in the sense of the "lefty" natural law theorist in the legal-theoretic discussion of slave codes). I'll revisit a bit of Plato's Republic, book 1, especially the exchanges between Socrates and his sophistic nemesis Thrasymachus, the relativist who holds so untenably that justice is the power of the stronger. In a later post I'll tie this back to the "right-wing-ish" legal realist Holmes and Hart. (Of course I mean all of this playfully...) 

I'm also writing in a more speculative mode. I believe in philosophy (as in law) that data should always lead, and theory should always follow. I don't yet have all the data, though. So let's call these hypotheses.

What strength or power does the "Negro" slave have? (I use the term of the American colonial period.) Put crudely, the Negro slave is a kind of beast to be controlled. Slave codes were clearly intended to cause the threat posed by the slave to diminish. If the Negro is thus understood animalistically, then, rather than being a full-on, full-blown author of action, the Negro is an object to be figured out and controlled. The Negro thus becomes an object of the law only when their owner cannot fully control them.

So, the Negro becomes dangerous, and because of that the law has to step in. Otherwise the law defers to the owner's attempts to control them. The slave codes thus describe the limits of slave punishment and handling, understood as reaching past the legitimate efforts an owner might expend. The slave is thus a beast, but that beast-character does not obliterate all limits of actions brought against them. The slave is thus like the horse, plus something: a restricted sort of actor, and the law makes room for that. 

Interestingly though, the Negro only becomes a problem for the law when there is a disruption, and the threat to social order that may result. So there is no issue apart from threat. In a way, there is no description of a normal life that concerns the law. So the property owner can come under law (some sort of regulatory regime) in virtue of making contracts, and the assumption of liability that results. In this regulatory role the law enters everyday life, not just when there is a violation or threat. Everyone thus has the expectation that a contract will be honored. The ordinary business of life here described and protected is something like what Hart has in mind in his notion of primary rules of obligation.

But in the slave case all of that is absent---or at least distorted. The slave is understood as a threat, as a creature capable of posing a threat, like a potentially threatening animal. And yet not too wild an animal. No one in the discussion believes that the Negro is an animal entirely, but that they are a chimera: half-animal, half-human. This theoretical confusion is of course expressed in the reasoning of lawmakers. Once you have this kind of chimerical existence, you get all of the other crazy-ass stuff.

Thrasymachus gets interesting here. Using a different sort of lens than is usually used, he may be seen as a heroic philosopher who models and champions the force of the brute as the basis of justice. Perhaps he may be read consistently this way, and so provide a way to understand the slave as legal actor. (Socrates certainly did not see him this way: he excludes Thrasymachus from the dialectic of reasoning, or at least engages him only problematically. No Socratic is going to like the move I'm toying with here.)

Every philosopher who studies the Republic thinks of Socrates as the heroic figure in the dialogue. I am no exception. But reading Book 1 as a kind of vilification of Thrasymachus and his view, and then trying to resuscitate his view---or at least gloss it in such a way that the view can be regarded as heroic from the standpoint of the slave is kind of interesting. All of the energy he puts into his view, all of the off-stage stuff, the stage direction let us call it, all of the philosophers who read it will ignore to focus on the reasoning part. But the stage direction is revealing. It is clear that Plato is trying to make Thrasymachus out to be some sort of beast, not unlike the role the Negro plays in the colonial period of the American enlightenment. The beast, slightly out of control, a sense of threat and danger. The wild man, undermining the project of elenchus, thwarting the march of reason toward truth. One cannot engage in the logical pursuit of truth, since one has to suspect that Thrasymachus is undermining that. And he even seems to say as much: "okay, have your little feast, Socrates, whatever you say. You've won, even though I don't really believe that you've won.'' He is the wild beast who cannot be reasoned with---it can be soothed, but cannot be shown the truth, cannot be part of the pursuit of truth. The more forceful character wins because they shut down the opposition. 

If Thrasymachus is the hero, the reader has a conflict, because Socrates---the voice of reason---is trying to shut down the hero.

(I guess I'm being a bit rhetorical as well as hypothetical.)

But then this becomes instructive in trying to study the colonial slave codes. Any modern reader will read the codes as the quasi-rational approach of superior force---a stronger force---trying to put down the character you are really rooting for, the slave. No one is going to read the slave codes and think, yeah, that's a good idea. Something that, if a white person did it, they would do a little time in prison, whereas if a black person does that same thing they would be sentenced to death, a distinction written directly in the penal code. Of course not. 

So reading Thrasymachus this way is like reading the slave codes. How it is for the slave in the cold hard light of rational law as one squirms and shudders. 

Holmes on agency and contract 1891 4

Lawyers like to think of Holmes as a "legal realist"---a term that sounds off to a philosopher, I think. Part of this is verbal, but it seems more accurate to call him a "legal pragmatist": circumstantial evidence exists (he was a member of the Metaphysical Club with James and Peirce and the rest), but so does textual evidence (his emphasis on common-sense in judicial reasoning, his eschewing of abstract principle, and so on).

I guess I join Brian Leiter and others who've done a lot of work to call attention to this, though Leiter (among others) has spent effort to clear things up and help the "realist" out a bit (Leiter, 2001, "Legal realism and legal positivism reconsidered," Ethics 111: 278-301). A quick look at his paper pre-convinces me that he is right. (A longer read will settle my thinking for real.) The gist of my thinking is that Holmes can be said to be pragmatist as a matter of approach to legal reasoning, while Hart and the positivists are giving a theory of the nature of law itself. Leiter holds that view, but goes much further in showing how the two can actually depend on each other. I need more to persuade me on that point.

In any case, Holmes' approach to law is clearly common-sensical and unprincipled (not in any anarchic sense, but in an anti-positivistic sense). Why not call this pragmatist?

Now the important part of this point. Holmes effectively shuts down the two familiar moves in legal philosophy---that of the positivist and that of the naturalist. Is this a good thing? We'll see. (But the Leiter caveat from earlier: maybe the realist actually needs a version of the positivist's appeal to rules. This is getting a bit complicated and will need its own post later.)

The positivist---take Hart as a paradigm---can make an appeal to the rule structure that constitutes law, and argue that those rules (properly understood) both guide and enable the jurist's reasoning. But Holmes can't make this move given his rejection of such legal abstractions. (Could he respond that the rules of the positivist aren't necessarily problematic---perhaps they are not necessarily abstract? Hard to see how he makes that move.)

The appeal to morality and the common good---the sort the natural law theorist will want to make---doesn't seem available to Holmes either.

The urgency to figure this out comes in part from thinking about how legal philosophy ought to explain the slave's place in the republic. 

At a high theoretical level the question plays out as pressure to moralize the law in the face of an egregious set of statutes (slave codes, Jim Crow laws). MLK's famous civil disobedience arguments in Letter from a Birmingham Jail represent this (leftward?) pressure on the Holmes-style legal theorist. 

But at a lower theoretical level is Holmes' discussion of contract law and its origins in Roman slave-master relations. If masters took their slaves to be agents for the purpose of making contracts, then the obligations thereby created (a cornerstone of contract law) arise pre-conventionally---at least to the extent that the families that slaves joined are pre-conventional. If so, then Holmesian contract law is naturalistic, a seeming violation of his realism.

This kind of reading is complicated by Holmes' approving quotation of Hobbes, though. Here's Hobbes:

Likewise children, fools, and madmen that have no use of reason may be personated by guardians, or curators, but can be no authors during that time of any action done by them, longer than (when they shall recover the use of reason) they shall judge the same reasonable. Yet during the folly he that hath right of governing them may give authority to the guardian. But this again has no place but in a state civil, because before such estate there is no dominion of persons. (Hobbes, Leviathan, chapter 16; emphasis mine).

Here Hobbes claims that there is no dominion of persons in the state of nature, and hence (I think) ex persona domini powers are non-natural. If so, then Holmes can be taken as claiming that the slave-master origins of contractual obligations are conventional after all.

Have to figure this out. 

Holmes on agency and contract 1891 3

Questions raised by the slaves acting ex persona domini principle: 

1. That slaves personify masters---is that pre-contractual, or a consequence of the contract made between master as slave-purchaser and slave-seller? (By pre-contractual, I mean does it result from something other than the contract; I don't mean to suggest it's already operative prior to the slave purchase, since no ownership would exist yet.)
2. The slave enjoys an advantage of directness (family-member-like, unlike strangers). Is this a species of the idea that a man is head of household, the "representative" of the woman and the children?
3. Slaves complicate the legal philosopher's task of inventorying the short list of legal concepts---let's include three to start with: the concept of the author of an action, the concept of property, and the concept of contract. Slaves muddy all of these.

Holmes on agency and contract 1891 2

Notes on Oliver Wendell Holmes, "Agency" 5 Harv L Rev 1 (1891-1892).

Last post I briefly introduced Holmes' view that an agent has all and only those powers granted by the principal. He discusses an anomaly though which is instructive: "the rule that an undisclosed principal may sue or be sued on a contract made by an agent on his behalf" (1).

(A helpful discussion by Cristine Christodoulou is here; a law review article by Randy Barnett is here; an older paper by Grover Heyler is here; and of course Wikipedia is here.)

The oddball part of this is that an undisclosed principal can, in a sense, be party to a contract they didn't literally make (though their agent did). An undisclosed principal, aside from the havoc they represent in contract law, also runs counter to the philosophy of law, in that authority is natural (as I asserted in my previous post) but is conferred in virtue of the public recognition of that fact (as Holmes argues in his 1891). If a principal is undisclosed then there cannot be public recognition that they have conferred power on to an agent; hence, there was no such conferral, and the resulting contract is invalid.

So what to make of this anomaly of US and British law?

Let's first appreciate the bits of the philosophy of legal logic Holmes helps himself to in his discussion of public understanding (as the ostensive extension of powers).

1. Conferral is public and objectively accessible. The meaning of the powers is not impressionistic, mental, or private.
2. Ostension as pointing is pure referring and assigning; if it is mediated, it is the least mediated of all significations.
3. Extension as the objects referred to (that is, the agents granted this-or-that power).

The anomalous piece of law, observes Holmes, would "seem to follow very easily from the identification of agent and principal," a relationship resulting from the "power of contracting through others, natural as it seems, [that] started from the family relations, and that...has been expressed in the familiar language of identification" (2). The slave is the extension of the persona of the principal, growing from the family nexus in which slavery would have taken place in the Roman context. 

[B]y the Roman law contractual rights could not be acquired through free persons who were strangers to the family. But a slave derived a standing to accept a promise to his master ex persona domini. [ST--that is, slaves personify masters]...An obligation may be acquired through slaves or free agents in our power, if they take the contract in the name of their master. (2)

Not only did slaves thus have a privileged legal role in contract-making in ancient Rome (according to Holmes), but they did so in the context of their being identified with their master and their family. In a very real (and perhaps natural) legal sense the slave serves as a legal extension of the master. The transitivity of obligation thereby achieved suggests a domestic and intimate (albeit problematic) source of obligation in the natural state.

Holmes on agency and contract 1891 1

Notes on Oliver Wendell Holmes, "Agency" 5 Harv L Rev 1 (1891-1892).

"A man is not bound by his servant's contracts unless they are made on his behalf and by his authority, and that he should be bound then is plain common-sense." (1)

A pair of central concepts in the theory of legal obligation are that of [1] the authority of the individual acting as principal and [2] the transitivity of that authority once delegated to an individual acting as agent. 

Regarding [1]: this is a bit of natural theory, in that a person acting is the author of their act, independent of any institutional recognition of such authority; it is in that sense that it is natural, rather than conventional or institutional. One is author of their actions even in a state of nature. If that is so, then whatever obligation issues from authority does so even in a pre-institutional state of nature; thus, author-derived-obligation is natural.

Regarding [2]: it is less clear that this is natural, since transitivity is a logical property owing to the logical form of authority, and it is a matter of the philosophy of logic whether such a thing as "the logical form of authority" could be natural. Besides, something feels different once we enter a world of conferred obligations: the social dimension invites regulation (something like a framework of protection against abuse or whatever, or else something like a guarantee that a breach-of-contract proceeding could be carried out, etc.). But what exactly is it that "feels different" here?

I think it may be more than just the social as such. After all, the context of original authority is social as well, as critics of liberal legal and political theory are fond of pointing out. They are clearly right. We are born in families, we discover our egocentric selfhood even as we interact with caretakers and siblings and the rest, and we come into childhood and adolescence forming our character etc in relation to those around us. To hold that authority is natural for being non-social while holding that transferred authority is non-natural for being social would invite these well-founded criticisms.

I think it may be more due to the fact that we transfer authority via acts whose structure is largely linguistic---this is close to circular; I'll fix it as I go---and that are understood by the public that way. Says Holmes:

It is true that in determining how far authority extends, the question is of ostensible authority and not of secret order. But this merely illustrates the general rule which governs a man's responsibility for his acts throughout the law. If, under the circumstances known to him, the obvious consequence of the principal's own conduct in employing the agent is that the public understand him to have given the agent certain powers, he gives the agent those powers. And he gives them just as truly when he forbids their exercise as when he commands it. It seems always to have been recognized that an agent's ostensible powers were his real powers; and on the other hand it always has been the law that an agent could not bind his principal beyond the powers actually given in the sense above explained. (1)

Ostensible authority---authority conferred by explicit action or gesture (on the model of pointing)---is the determinative category, and not any merely intended conferring of authority. (No one can appeal to a mere intention to have so-and-so represent you in a contract negotiation, or else some sort of preference, or whatever. Legal obligation cannot be private and mental, but must be demonstrated and public.) But it doesn't stop there. If "the public" comes to form the belief that so-and-so has conferred authority on this one or that one, then they have. The public understanding of such a conferral is sufficient for that conferral to have become effective. 

But why should that be?

Here is where Holmes' pragmatism becomes very obvious. What other standard could the law use? If the issue is the intention of the one who has authority, then the law is contingent on a reading of something unknowable apart from the very party who is interested in the matter, and thus has a motivation to affect or alter it. That would obviously be a disaster. 

The problem though for this sort of pragmatist starting point is that there's some sort of peril in giving the public the arbitrating role too. The public is not a singular mind, after all, and so may hold conflicting understandings about the conferring of authority (or any other matter). Besides, those who constitute the public may themselves be interested parties, and so may have a stake in how the matter gets settled.

A more generous reading to Holmes is to take "the public" as a kind of quasi-mind, a viewpoint taken from the general good. If we idealize the observer to the conferring of authority, we can abstract away any contingent interest such an observer has in the proceedings at issue, and thus arrive at an unsullied understanding of the conferral of obligation.

But pragmatists tend to hate that kind of abstract move; more on that when I look at Holmes' "Path of the law" essay.

More stacker toys

More video posts (they run 11 total--I'll clean all that up later...) at The Smokr Tumblr.

Stacker toys

Stacker toys raise a number of logically interesting challenges, especially if you try to use them as logical models and in logic games. A first look is at The Smokr Tumblr (5 video posts).

CFP--Logical Aspects of Computational Linguistics

LACL 2014
IRIT, Toulouse, France
18-20 June 2014
http://www.irit.fr/LACL2014/

FIRST CALL FOR CONTRIBUTIONS

LACL'2014 is the 8th international conference on logical and formal methods in computational linguistics. This conference addresses the use of type theoretic, proof theoretic and model theoretic methods for describing natural language syntax and semantics, as well as the implementation of natural language processing software relying on such models. It will be held at IRIT, Toulouse, France, from 18 to 20 June 2014.

Scope: 

Computer scientists, linguists, mathematicians and philosophers are invited to present their work on the use of logical methods in computational linguistics and natural language processing, in natural language analysis, generation or acquisition.

Topics of either theoretical or applied interest include, but are not limited to:

* logical foundation of syntactic formalisms
          o categorial grammars
          o minimalist grammars
          o dependency grammars
          o tree adjoining grammars
          o model theoretic syntax
          o formal language theory for natural language processing
          o data-driven approaches
* logics for semantics of lexical items, sentences, discourse and dialog
          o discourse theories
          o Montague semantics
          o compositionality
          o dynamic logics
          o game semantics
          o situation semantics
          o generative lexicon
          o categorical semantics
* applications of these models to natural language processing
          o software for natural language analysis
          o software for acquiring linguistic resources
          o software for natural language generation
          o software for information extraction
          o inference tasks
          o evaluation
          o scalability

 
SUBMISSIONS and PROCEEDINGS

Articles should be written in the LaTeX format of LNCS by Springer (see authors instructions at http://www.springer.com/computer/lncs?SGWID=0-164-6-793341-0) and may consist of up to 12 pages of content (including figures, bibliography, possible appendices). In exceptional cases by prior agreement with program committee a paper up to 16 pages may be considered. It is expected that each accepted paper be presented at the meeting by one of its authors.

Submission is exclusively admitted electronically, in PDF format, through the EasyChair system. The submission site is https://www.easychair.org/conferences/?conf=lacl2014

PROCEEDINGS

Accepted papers will be published as a volume of the FoLLI sub-line of Lecture Notes in Computer Science (LNCS) by Springer (http://www.springer.com/lncs).

Invited speakers:

Prof. Zhaohui Luo,  Computer Science Department, Royal Holloway, University of London, U.K.

Prof. Michael Moortgat,  Department of Language, Literature and Communication, Utrecht University, the Netherlands

Prof. Reinhard Muskens, Department of Philosophy, Tilburg University, the Netherlands

PREVIOUS EDITIONS

A selection of the 1995 articles appeared in a special issue of the Journal of Logic, Language and Information (7:4, 1998). The proceedings of the international conferences LACL'96, LACL'97, LACL'98, LACL'2001, LACL'2005, LACL'2011 appeared in the series Lecture Notes in Artificial Intelligence (volumes 1328, 1582, 2014, 2099, 3492, 6736), and the proceedings of LACL 2012 in Lecture Notes in Computer Science (volume 7351) published by Springer. 

IMPORTANT DATES

Paper submission deadline: March 15, 2014
Notification of acceptance: April 5, 2014
Camera ready copies due: April 15, 2012
Conference dates: June 18-20, 2014

CONTACTS

soloviev (at) irit (dot) fr and asher (at) irit (dot) fr, co-chairs of LACL 2014

FYI--Bertrand Russell Visiting Professorship--McMaster University

FYI--Bertrand Russell Visiting Professorship 

The Department of Philosophy invites applications for a Visiting Professorship in Russell and the History of Early Analytic Philosophy. McMaster University, which houses the Bertrand Russell Archives and the Bertrand Russell Research Centre, is one of the leading centres for research on Russell's philosophy.

The Visiting Professorships, one of which will be available each year, are intended for established scholars whose research would be benefited by access to the Bertrand Russell Archives for an extended period. They are tenable for either one or two semesters, and involve the obligation to present at least one paper in the Philosophy Department's Speakers Series and teach one fourth year undergraduate course also open to graduates, preferably on the history of analytic philosophy (although a different topic may be agreed upon with the Chair of the Department of Philosophy), while undertaking research in the Russell Archives. The stipend for teaching the course is up to $15,749.00, depending on rank, in accordance with the standard schedule for overload teaching for 2014/2015. 

It is expected that successful applicants will be on research leave from their home university during the term of their Visiting Professorship and thus can rely on their regular leave salary for their main financial support. The closing date for applications for 2014-15 is April 30, 2014. Applicants should send a copy of their CV together with a description of the research they propose to conduct at the Russell Archives to the Chair ( chphilo@mcmaster.ca ), Department of Philosophy, University Hall 310, McMaster University, Hamilton, Ontario L8S 4K1, Canada. 

CFP: Midwest Undergraduate Cognitive Science Conference

Call for papers, for your information:
Midwest Undergraduate Cognitive Science Conference

The submission deadline for the 6th annual Midwest Undergraduate Cognitive Science Conference is Saturday, 01.Mar.14. They will be accepting submissions starting 08.Feb.14.

This conference is organized to provide undergraduate cognitive scientists with an opportunity to present their research to their peers from across the Midwest.

[Conference planners] are pleased to welcome Dr. Olaf Sporns as the keynote speaker this year. Dr. Olaf Sporns is a Provost Professor of Psychological and Brain Sciences at Indiana University with a focus in computational cognitive neuroscience. Dr. Sporns is well known for his work with the Human Connectome Project.

Abstracts should be between 150-300 words, and potential topics span the full breadth of cognitive science. Many students have taken this as an opportunity to further develop a project they have started in a course, or to receive feedback on independent research.

Undergraduate students who wish to present a poster or talk can submit their abstracts through a form on the submissions page on the MUCSC website (http://mucsc.info/submissions.php).

The deadline for submissions is 01.Mar.14. Abstracts will be peer-reviewed by the program committee and notifications will be emailed by 22.Mar.13.

The conference will be held at the Bloomington, IN campus of Indiana University on Friday, 11.Apr.14 and Saturday, 12.Apr.14.

Undergraduates are invited to submit their research projects as a 15 minute talk or a poster through the online submission form at http://mucsc.info/submissions.php. [Planners] encourage submissions from a wide range of disciplines, including philosophy, psychology, artificial intelligence, linguistics, economics, criminal justice, informatics, anthropology, and the humanities. The aim of the conference is to provide a venue for young, aspiring cognitive scientists to share their work with both peers and senior faculty, and to foster relationships among undergraduates throughout the Midwest region.

Everyone interested in Cognitive Science, regardless of age, is encouraged to register to attend the conference at http://mucsc.info/registration.php. Lunch will be catered, and they want to make sure there's enough for everyone!

For more information, see www.mucsc.info or send an email to cogsconf (at) indiana (dot) edu.

Forwarded to me by Joyce Uland, MUCSC Co-chair.

Brandon Butler to speak on intellectual property law

This is for your information:

Brandon Butler will speak on intellectual property law at the Billy
Date: Wed, 26.Feb.14
Time: 12:30-13:45
Atrium Auditorium

His short bio: Brandon Butler is the Practitioner-in-Residence at the Glushko-Samuelson Intellectual Property Clinic at the Washington College of Law at American University in Washington, D.C.  Before teaching law, he was the Director of Public Policy Initiatives at the Association of Research Libraries (ARL).  Before that, he was an associate in the Media and Information Technologies practice group at the Washington, D.C. law firm Dow Lohnes PLLC.  He received his J.D. from the University of Virginia School of Law.

I may have a conflict, but if I'm free, I plan to be there. 

Geometric Stacker models

Melissa and Doug's Geometric Stackers on my workbench. A piece or two is missing from peg 3, btw.

I don't recall playing with stacker toys as a kid. Blocks, play-doh, stuff like that, but toys where you stack wood pieces on pegs didn't show up on my radar until I started using them in work on logic.

As part of a larger research problem I'm exploring on the logic of toys, I have some questions about stackers. But first a few observations.

Two obvious big facts about stackers. First, there are lots of brightly colored, variously shaped pieces (they have holes in them that accommodate the pegs they are stacked on). And second, there are those pegs. The pegs force the pieces into some arrangement or other, but the pieces have their various properties independent of their arrangement.

The stackers thus permit a grid system: peg 1, first position--perhaps 1.A, something like that--and on in the obvious way: 1.A, 1.B, 1.C, and so on. The height of the peg and the thickness (height) of each piece, if they are all similar, thus determine how many slots each peg has.

Suppose we create a model as our initial state in which piece a and piece b, both circular, are stacked on peg 1 in the first two positions (1.A and 1.B). Then suppose we create a model to be our final state, in which piece a is still at 1.A, but octagonal piece c is at 2.A and octagonal piece d is at 3.A. (Sorry--next time I'll have more pics. Maybe I'll move this discussion to my Tumblr blog.)

I'll hold off on the list of sentences in the model until Tumblr. For now, let me point out a couple of constraints on the Stackers:

1. The universe has pegs, numbered/slotted into a grid system (as I've been suggesting).
2. It will help enormously to have functions to make instructions simpler: $remove _top-most_ piece _early-most_$. The $_top-most_$ function is a space function (describing location in space), while the $_early-most_$ function is a time function (describing position in time).

Enough for now.