Steal This Title
Friday, November 02, 2007
PHIL3419 - First Essay
In this essay I will provide a critical exposition of Merleau-Ponty’s chapter ‘The Child’s Relations with Others’ in the 1962 publication of The Primacy of Perception, and will show how this essay can be seen as implicitly critical of Jean-Paul Sartre’s position on consciousness, as developed in his influential Being and Nothingness. In ‘The Child’s Relations with Others’, Merleau-Ponty develops an understanding of how children come to understand the existence of others, and through this richly textured understanding draws certain conclusions about the nature of consciousness; to wit, he develops a strongly anti-Cartesian position, in that he argues that consciousness is intersubjective – that an essential understanding of others lies at its very base. On the other hand, Sartre’s position in Being and Nothingness, as I will show, is Cartesian concerning mind and consciousness – rather than as intersubjective, he sees them as private, as subjective. Thus, Merleau-Ponty’s strong anti-Cartesianism can be taken as an implicit critique of the arguments of his great French compatriot.
Traditional philosophical thought, from Descartes to Sartre, holds that mind is individual in the sense that it is purely subjective. Merleau-Ponty’s ‘The Child’s Relations with Others’ counters this traditional account; the essay serves to outline his own particular intersubjectivist account. He holds that the traditional distinction between self and other is not as decisive as empiricists and intellectualists, such as Locke, Mills and Kant, and that the distinction may not exist at all. Merleau-Ponty outlines what the theory of ‘separated individual’ means to the self in-the-world in order to defeat the distinction between self and other as an initial grounds for self. He pairs ‘classic psychology’ with the action of growing in the world, which gives him a tool by which to point out what he sees as decisive inconsistencies between the individual consciousness and the interaction of children as they grow into the world. The example Merleau-Ponty gives is of the child who enacts a smile obviously without the intellectual foreknowledge of the meaning, social or otherwise, of the act itself. The following quote is where Merleau-Ponty insists that the complex task of recognising, fulfilling and examining an analogous relationship with others is beyond the reach of the child who smiles:
How could it be possible if, beginning with the visual perception of another’s smile, he had to compare that visual perception of the smile with the movement that he himself makes when he is happy or when he feels benevolent – projecting to the other benevolence of which he would have had intimate experience but which could not be grasped directly in the other? This complicated process would seem to be incompatible with the relative precociousness of the perception of others.
It is clear from the quote that Merleau-Ponty finds the task put to the child too greater an expectation to bear merit. For the child to perceive visually an action from a complete and separate other and then categorically replicate such action, by inferring physical location and movement of self from the perception, is straining the analogy. Merleau-Ponty’s point is that the act and interaction implies a far less distinguished separation between self and others than the empiricist or intellectualist argument is willing to permit.
Merleau-Ponty’s arguments are an implicit critique of Sartre. In order to show how this is the case it will be helpful if we briefly look at how Sartre differs from the standard empiricist and intellectualist accounts of the likes of Locke and Mills, and then how he reconciles his own model of consciousness with perception. In Being and Nothingness Sartre conceives of consciousness as activity as apart from object, which allows him to reconcile the process of imitation. That is, for Sartre there is no fixed consciousness for the other to perceive and grasp; rather the resulting action of the body in situation is existence as object rather than subject. So the body is the operating facticity in the world, and because the existence for others is as an object, one is able to grasp the other because these actions are intended for the other, thus meaningful. For Sartre consciousness is still separate – Cartesian indeed – and operates fundamentally from the mind/body separation; perception of the other only indirectly involves the consciousness, which is seen as an activity wherein the meaningful relationships between the behaviours of the other and the world are perceived and imitated. The body of the other is separate from the consciousness of the other: the body of the other is an object, and this being the case the other as object is accessible to observation. One can imitate the other and reiterate meaningful action. Meaning is not transferred, but is rather conjured internally by the consciousness via its constant flight to become something in activity.
Merleau-Ponty’s account of the body is essential to his intersubjectivity that critiques Sartre’s account of the body and so it is important to clarify the account of the body that Merleau-Ponty puts forward. He constructs an understanding of the body as inseparable from its surrounds and from others. By understanding the body in these terms, Merleau-Ponty argues that when one perceives another, one does not perceive an external representation of the internal self within a body that is being perceived (as in a Cartesian position), rather one perceives of conduct, i.e., corporeal schema , as the other moves in-the-world. In spite of this, one is at least accustomed to identifying the other as a separate and individual body. The explanation Merleau-Ponty puts forward of the perception of other bodies consists of three simultaneous recognitions. Firstly, a recognition of a self image that exists in the world to be seen; secondly, the recognition to perceive the other as apart from; and finally the recognition of the background in which all these images are foregrounded.
Merleau-Ponty develops a fundamentally anti-Cartesian position, wherein an understanding of the other is essential to an understanding of the self. The wedge he uses to get this argument through, is an analysis of the kind of imitation that pre-linguistic children evidently carry out on a daily basis. Through this analysis, Merleau-Ponty develops an understanding of consciousness as outwardly bound, rather than inwardly secluded. An outwardly bound consciousness, i.e., a consciousness that is directed toward the world, is a consciousness that imparts conduct into the world. It is this conduct that Merleau-Ponty seizes upon as the convergence point between the self and other. Conduct is not pure action, as in the empiricist and intellectualist accounts, rather it is a structure of bodily interaction with the background in which the body is inseparable. This bodily interaction for Merleau-Ponty is never without intentionality. It is intentionality that constitutes meaning, and conduct can have meaning for others because the structure is easily identified and empathised with, as this quote shows:
the different sensory domains which are involved in the perception of my body do not present themselves to me as so many absolutely distinct regions...if we are dealing with a schema, a system, such a system would be relatively transferable from one sensory domain to the other in the case of my own body, just as it could be transferred to the domain of the other.
Systems of the senses are transferable between others, as the quote shows, unlike the sensory information itself. Conduct is ordered into a system (the corporeal schema), by the consciousness of the self carrying out intentional activity.
So, Merleau-Ponty has developed an account of consciousness that outlays structure through the body; he then turns to explaining how this structure is transferred from the self to the other. He does this by drawing out the reduction that takes place in the ‘mirror stage’ . The ‘mirror stage’ constitutes that period in life when a child is still not able to understand that the image in the mirror is an image of her; and the reduction here is that any external image may be construed as one’s own external image. The reduction that takes place in the mirror is the reduction of the specular image as being-for others relative to a self rather than an object in its own capacity. This is essentially the child coming to recognise that the image in the mirror is an image of her own body, and that the images of others can likewise be reflected in the mirror. Merleau-Ponty examines this occurrence of understanding as a synthesis in the understanding of others. What is happening here is a growth of intellectual understanding of the self and how the self is perceived in the world by others. This understanding thereby becomes reflexive and one’s own understanding of others develops. An analysis of this developmental stage for a child, coming to terms with the specular image, reveals for Merleau-Ponty the intersubjective nature of one’s existence. Through the development the individual comes to a different understanding of self; they are not able to develop a sense of self at all without the other. For the ‘mirror stage’ poses a reasonable model for the transference of the corporeal schema, which is the crucial element in the perception of others.
A detail of the processes of reduction in the mirror stage provides a map for how Merleau-Ponty builds a syncretic field out of the ambiguity between external images for the child. The syncretic field is the space on which the coupling occurs, and without it the coupling seems untenable. The child cannot draw a clear distinction between the image of herself reflected in the mirror and the image of another reflected in the mirror. So what is lacking here for the child is a clear association between the introceptive image of self that the child understands as herself and the image that is reflected back at her of her external shape and relative size to her surroundings, or her extroceptive image. What this means is that the child can easily transfer her own introceptive self upon the image of the other within the mirror, or specular space. There is no clear, previously existing, relationship between what one internally identifies as self and the existing external image of what others identify as that self, and so there is an ambiguous distinction between the two. This being the case, all of the child’s intentions, body actuality, and meaning can be seen coherently in the space of the specular image without causing confusion to the child. It is precisely that fluidity between extroceptive images and the body as it is for others, that allows for syncretic relationships to occur. Merleau-Ponty suggests that over the period of specular reduction for the child this transitive basis continues to allow a reciprocal dialogue of the corporeal schema to take place even when the child understands the place of the mirror and the true bodily ownerships of the reflections. The underlying ambiguity between the image of other that one grasps and the unknown image for others that one projects allows for one to take on and embody the for-itself image of another. This syncretic transfer of extroceptive images accounts for the transference of corporeal schema across two persons.
Merleau-Ponty is most critical of Sartre in the formation of alienation in the perception of the other; Merleau-Ponty uses alienation in order to make perception of the other possible opposing the alienation that is inherent in Sartre’s Cartesian consciousness. It is in the differing forms of alienation found in Merleau-Ponty and Sartre that we can begin to identify Merleau-Ponty’s work as a critique of the Sartrian account of perception of others. The perception of the other in Merleau-Ponty’s syncretic relationship begins before the child understands that their own body is separate and individual, therefore the bodily transfer of intentions via corporeal schema happens before communication, because communication requires clear distinctions between the doer and the receiver. When Merleau-Ponty introduces coupling (specifically in reference to Husserl) the nature of this relationship between the self and the other is so basic that Merleau-Ponty describes it as pre-metaphorical. This is not a claim that we are essentially the same thing, because that makes objects out of us and that is exactly what Merleau-Ponty is arguing against. The corporeal schema of one is useful and necessary only for the other, and vice versa. So in this very real transferred structure the two people are coupled by requiring that which the other gives over to the world by the nature of consciousness. Out of this transference comes an alienation between the two. Each incorporates a structure of the other that is inaccessible to themselves. One is removed from the gains, benefits, of the activity of the self. The outwardly bound consciousness is acting in such a way that it benefits another with itself without being able to apprehend its own benefits. The one can never have the perception of the self, but is in the knowledge of giving out the necessary structure in order to understand itself. This alienation frustrates self-understanding and is never overcome, but is essential to the perception of others. To these ends Merleau-Ponty is attributing coupling.
In comparison Sartre’s alienation occurs due to objectification, which Merleau-Ponty avoids in his intersubjective account. Sartre explains alienation as one recognising their body as an instrument among many instruments. In the same sense that the corporeal structure is given over to the other and used as means for perception, the body for Sartre is a tool for the self and the senses are given over to the world, much like any other object in the world, for the other to perceive of it as an object. That is to say, each is giving over something that is intrinsically inapprehensible for themselves, but is apprehended by the other and is key to the process of perception in both accounts. The other, in Sartre’s sense, is able to transcend what, for the subject, is impossible to transcend for the self. Merleau-Ponty’s coupling makes the other consciousness inseparable from the perception of the other, Sartre’s account requires the body other to be viewed in situation and the consciousness to be perceived indirectly. The act of coupling has no place in Being and Nothingness, and the objectification of the sense implies that one does not need consciousness of the other in-the-world for perception to take place. Sartre’s position is essentially Cartesian, while Merleau-Ponty’s is intersubjective. For Sartre objects are the only things that one can perceive and that it is only objects that are necessary to be perceived. Consciousness is nothingness, is never perceived and practically needs not to exist for perception to take place. Where the body in all its facticity and the senses reified are all that is required for the perception of the other. Coming across a body making use, inserting instrumentality to objects in the world, of the context in which it is placed is the extent to which Sartre accounts for participation in perception.
In conclusion Merleau-Ponty critiques Sartre’s account of perception of the other with the use of alienation in coupling consciousness. This allows Merleau-Ponty to rid himself the use of objectification and the use of a Cartesian sense of consciousness.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995.
N. Levy, “In-Itself, for-Itself and for-others; Sartre’s Ontology”, Sartre, Oneworld Publications, 1975
M. Merleau-Ponty, “The Child’s Relation With Others”, trans William Cobbm The Primacy of Perception, James M Edie (ed.) Evanston: Northwestern University Press, 1964.
M. Merleau-Ponty, Phenomenology of Perception, Trans. Colin Smith, London: Routledge & Kegan Paul, 1962.
J-P Sartre, “The body-for-others”, Being and Nothingness, Trans H. Barnes, washinton Square Press, 1958.
End Notes
Traditional philosophical thought, from Descartes to Sartre, holds that mind is individual in the sense that it is purely subjective. Merleau-Ponty’s ‘The Child’s Relations with Others’ counters this traditional account; the essay serves to outline his own particular intersubjectivist account. He holds that the traditional distinction between self and other is not as decisive as empiricists and intellectualists, such as Locke, Mills and Kant, and that the distinction may not exist at all. Merleau-Ponty outlines what the theory of ‘separated individual’ means to the self in-the-world in order to defeat the distinction between self and other as an initial grounds for self. He pairs ‘classic psychology’ with the action of growing in the world, which gives him a tool by which to point out what he sees as decisive inconsistencies between the individual consciousness and the interaction of children as they grow into the world. The example Merleau-Ponty gives is of the child who enacts a smile obviously without the intellectual foreknowledge of the meaning, social or otherwise, of the act itself. The following quote is where Merleau-Ponty insists that the complex task of recognising, fulfilling and examining an analogous relationship with others is beyond the reach of the child who smiles:
How could it be possible if, beginning with the visual perception of another’s smile, he had to compare that visual perception of the smile with the movement that he himself makes when he is happy or when he feels benevolent – projecting to the other benevolence of which he would have had intimate experience but which could not be grasped directly in the other? This complicated process would seem to be incompatible with the relative precociousness of the perception of others.
It is clear from the quote that Merleau-Ponty finds the task put to the child too greater an expectation to bear merit. For the child to perceive visually an action from a complete and separate other and then categorically replicate such action, by inferring physical location and movement of self from the perception, is straining the analogy. Merleau-Ponty’s point is that the act and interaction implies a far less distinguished separation between self and others than the empiricist or intellectualist argument is willing to permit.
Merleau-Ponty’s arguments are an implicit critique of Sartre. In order to show how this is the case it will be helpful if we briefly look at how Sartre differs from the standard empiricist and intellectualist accounts of the likes of Locke and Mills, and then how he reconciles his own model of consciousness with perception. In Being and Nothingness Sartre conceives of consciousness as activity as apart from object, which allows him to reconcile the process of imitation. That is, for Sartre there is no fixed consciousness for the other to perceive and grasp; rather the resulting action of the body in situation is existence as object rather than subject. So the body is the operating facticity in the world, and because the existence for others is as an object, one is able to grasp the other because these actions are intended for the other, thus meaningful. For Sartre consciousness is still separate – Cartesian indeed – and operates fundamentally from the mind/body separation; perception of the other only indirectly involves the consciousness, which is seen as an activity wherein the meaningful relationships between the behaviours of the other and the world are perceived and imitated. The body of the other is separate from the consciousness of the other: the body of the other is an object, and this being the case the other as object is accessible to observation. One can imitate the other and reiterate meaningful action. Meaning is not transferred, but is rather conjured internally by the consciousness via its constant flight to become something in activity.
Merleau-Ponty’s account of the body is essential to his intersubjectivity that critiques Sartre’s account of the body and so it is important to clarify the account of the body that Merleau-Ponty puts forward. He constructs an understanding of the body as inseparable from its surrounds and from others. By understanding the body in these terms, Merleau-Ponty argues that when one perceives another, one does not perceive an external representation of the internal self within a body that is being perceived (as in a Cartesian position), rather one perceives of conduct, i.e., corporeal schema , as the other moves in-the-world. In spite of this, one is at least accustomed to identifying the other as a separate and individual body. The explanation Merleau-Ponty puts forward of the perception of other bodies consists of three simultaneous recognitions. Firstly, a recognition of a self image that exists in the world to be seen; secondly, the recognition to perceive the other as apart from; and finally the recognition of the background in which all these images are foregrounded.
Merleau-Ponty develops a fundamentally anti-Cartesian position, wherein an understanding of the other is essential to an understanding of the self. The wedge he uses to get this argument through, is an analysis of the kind of imitation that pre-linguistic children evidently carry out on a daily basis. Through this analysis, Merleau-Ponty develops an understanding of consciousness as outwardly bound, rather than inwardly secluded. An outwardly bound consciousness, i.e., a consciousness that is directed toward the world, is a consciousness that imparts conduct into the world. It is this conduct that Merleau-Ponty seizes upon as the convergence point between the self and other. Conduct is not pure action, as in the empiricist and intellectualist accounts, rather it is a structure of bodily interaction with the background in which the body is inseparable. This bodily interaction for Merleau-Ponty is never without intentionality. It is intentionality that constitutes meaning, and conduct can have meaning for others because the structure is easily identified and empathised with, as this quote shows:
the different sensory domains which are involved in the perception of my body do not present themselves to me as so many absolutely distinct regions...if we are dealing with a schema, a system, such a system would be relatively transferable from one sensory domain to the other in the case of my own body, just as it could be transferred to the domain of the other.
Systems of the senses are transferable between others, as the quote shows, unlike the sensory information itself. Conduct is ordered into a system (the corporeal schema), by the consciousness of the self carrying out intentional activity.
So, Merleau-Ponty has developed an account of consciousness that outlays structure through the body; he then turns to explaining how this structure is transferred from the self to the other. He does this by drawing out the reduction that takes place in the ‘mirror stage’ . The ‘mirror stage’ constitutes that period in life when a child is still not able to understand that the image in the mirror is an image of her; and the reduction here is that any external image may be construed as one’s own external image. The reduction that takes place in the mirror is the reduction of the specular image as being-for others relative to a self rather than an object in its own capacity. This is essentially the child coming to recognise that the image in the mirror is an image of her own body, and that the images of others can likewise be reflected in the mirror. Merleau-Ponty examines this occurrence of understanding as a synthesis in the understanding of others. What is happening here is a growth of intellectual understanding of the self and how the self is perceived in the world by others. This understanding thereby becomes reflexive and one’s own understanding of others develops. An analysis of this developmental stage for a child, coming to terms with the specular image, reveals for Merleau-Ponty the intersubjective nature of one’s existence. Through the development the individual comes to a different understanding of self; they are not able to develop a sense of self at all without the other. For the ‘mirror stage’ poses a reasonable model for the transference of the corporeal schema, which is the crucial element in the perception of others.
A detail of the processes of reduction in the mirror stage provides a map for how Merleau-Ponty builds a syncretic field out of the ambiguity between external images for the child. The syncretic field is the space on which the coupling occurs, and without it the coupling seems untenable. The child cannot draw a clear distinction between the image of herself reflected in the mirror and the image of another reflected in the mirror. So what is lacking here for the child is a clear association between the introceptive image of self that the child understands as herself and the image that is reflected back at her of her external shape and relative size to her surroundings, or her extroceptive image. What this means is that the child can easily transfer her own introceptive self upon the image of the other within the mirror, or specular space. There is no clear, previously existing, relationship between what one internally identifies as self and the existing external image of what others identify as that self, and so there is an ambiguous distinction between the two. This being the case, all of the child’s intentions, body actuality, and meaning can be seen coherently in the space of the specular image without causing confusion to the child. It is precisely that fluidity between extroceptive images and the body as it is for others, that allows for syncretic relationships to occur. Merleau-Ponty suggests that over the period of specular reduction for the child this transitive basis continues to allow a reciprocal dialogue of the corporeal schema to take place even when the child understands the place of the mirror and the true bodily ownerships of the reflections. The underlying ambiguity between the image of other that one grasps and the unknown image for others that one projects allows for one to take on and embody the for-itself image of another. This syncretic transfer of extroceptive images accounts for the transference of corporeal schema across two persons.
Merleau-Ponty is most critical of Sartre in the formation of alienation in the perception of the other; Merleau-Ponty uses alienation in order to make perception of the other possible opposing the alienation that is inherent in Sartre’s Cartesian consciousness. It is in the differing forms of alienation found in Merleau-Ponty and Sartre that we can begin to identify Merleau-Ponty’s work as a critique of the Sartrian account of perception of others. The perception of the other in Merleau-Ponty’s syncretic relationship begins before the child understands that their own body is separate and individual, therefore the bodily transfer of intentions via corporeal schema happens before communication, because communication requires clear distinctions between the doer and the receiver. When Merleau-Ponty introduces coupling (specifically in reference to Husserl) the nature of this relationship between the self and the other is so basic that Merleau-Ponty describes it as pre-metaphorical. This is not a claim that we are essentially the same thing, because that makes objects out of us and that is exactly what Merleau-Ponty is arguing against. The corporeal schema of one is useful and necessary only for the other, and vice versa. So in this very real transferred structure the two people are coupled by requiring that which the other gives over to the world by the nature of consciousness. Out of this transference comes an alienation between the two. Each incorporates a structure of the other that is inaccessible to themselves. One is removed from the gains, benefits, of the activity of the self. The outwardly bound consciousness is acting in such a way that it benefits another with itself without being able to apprehend its own benefits. The one can never have the perception of the self, but is in the knowledge of giving out the necessary structure in order to understand itself. This alienation frustrates self-understanding and is never overcome, but is essential to the perception of others. To these ends Merleau-Ponty is attributing coupling.
In comparison Sartre’s alienation occurs due to objectification, which Merleau-Ponty avoids in his intersubjective account. Sartre explains alienation as one recognising their body as an instrument among many instruments. In the same sense that the corporeal structure is given over to the other and used as means for perception, the body for Sartre is a tool for the self and the senses are given over to the world, much like any other object in the world, for the other to perceive of it as an object. That is to say, each is giving over something that is intrinsically inapprehensible for themselves, but is apprehended by the other and is key to the process of perception in both accounts. The other, in Sartre’s sense, is able to transcend what, for the subject, is impossible to transcend for the self. Merleau-Ponty’s coupling makes the other consciousness inseparable from the perception of the other, Sartre’s account requires the body other to be viewed in situation and the consciousness to be perceived indirectly. The act of coupling has no place in Being and Nothingness, and the objectification of the sense implies that one does not need consciousness of the other in-the-world for perception to take place. Sartre’s position is essentially Cartesian, while Merleau-Ponty’s is intersubjective. For Sartre objects are the only things that one can perceive and that it is only objects that are necessary to be perceived. Consciousness is nothingness, is never perceived and practically needs not to exist for perception to take place. Where the body in all its facticity and the senses reified are all that is required for the perception of the other. Coming across a body making use, inserting instrumentality to objects in the world, of the context in which it is placed is the extent to which Sartre accounts for participation in perception.
In conclusion Merleau-Ponty critiques Sartre’s account of perception of the other with the use of alienation in coupling consciousness. This allows Merleau-Ponty to rid himself the use of objectification and the use of a Cartesian sense of consciousness.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995.
N. Levy, “In-Itself, for-Itself and for-others; Sartre’s Ontology”, Sartre, Oneworld Publications, 1975
M. Merleau-Ponty, “The Child’s Relation With Others”, trans William Cobbm The Primacy of Perception, James M Edie (ed.) Evanston: Northwestern University Press, 1964.
M. Merleau-Ponty, Phenomenology of Perception, Trans. Colin Smith, London: Routledge & Kegan Paul, 1962.
J-P Sartre, “The body-for-others”, Being and Nothingness, Trans H. Barnes, washinton Square Press, 1958.
End Notes
Merleau-Ponty’s account of intersubjectivity has been widely influential in contemporary philosophy. Partnered with the work of Heidegger the intersubjectivist accounts of being and perception have dominated continental philosophy since the publication of Phenomenology of Perception and Being and Time. The influence of intersubjectivity has stretched as far as the analytics, and its philosophical language has been read across most variants of philosophical discourse.
The following paragraph deals explicitly with the introduction Merleau-Ponty gives to the empiricist and intellectualist accounts in The Primacy of Perception, pg 113-17. This section is important because it sets the groundwork for the outward bound consciousness, which is a crucial development in the perception of others. This section in MP’s work is what immediately preceded the paragraph in question for this essay on page 118.
Although Merleau-Ponty does not explicitly state where classic psychology obtains their notions of individual consciousness, the description that Merleau-Ponty sets out in pages 113 to 115 of ‘The Child’s Relations with Others’ is recognisably the consciousness of empiricist philosophy such as Locke.
Merleau-Ponty, The Primacy of Perception, pg 116
Merleau-Ponty, The Primacy of Perception, pg 115
Sartre, Being and Nothingness, pg 349
Sartre, Being and Nothingness, pg 344
The term facticity as used by Sartre points to the facts of the situation that can be perceived and known. On page 342 of Being and Nothingness Sartre refers to the other’s body as “his facticity as an instrument”.
Sartre, Being and Nothingness, pg 352
Merleau-Ponty, The Primacy of Perception, pg 117
The term ‘corporeal schema’ as used by Merleau-Ponty is his expression of the structural shape that the consciousness takes in-the-world as it is the body in-the-world. This structure is interpretable by the other.
Merleau-Ponty, The Primacy of Perception, pg 117
Merleau-Ponty, The Primacy of Perception, pg 136
This paragraph is primarily concerned with the Merleau-Ponty’s formulation of the outwardly bound consciousness on pages 117 – 120 of The Primacy of Perception.
Merleau-Ponty, The Primacy of Perception, pg 117
Merleau-Ponty, The Primacy of Perception, pg 118
This reduction is the processes that take place within the child that allow the child to come to the three simultaneous recognitions aforementioned. Merleau-Ponty begins analysing the reduction on page 125 of ‘The Child’s Relations with Others’ and it continues onto page 141. He covers the intellectual account of the reduction by Wallon and discusses this against Lacon.
This section is my explication of the mirror phase that Merleau-Ponty discusses in some depth from pages 121 to 140 in The Primacy of Perception. I believe for the purposes of this essay it is important to understanding the function of the mirror phase in relation to the coupling in the perception of others. To aid this understanding a simply put account of the processes involved in the mirror phase is appropriate. I have not gone in depth in this matter, nor do I have the space to do this justice, but our understanding of the notion of coupling would be drastically weakened without it. I do not pretend that these two paragraphs adequately deal with all of Merleau-Ponty’s issues with the mirror phase, nor does it describe the mirror in detail, but it adequately covers the necessary basics for the express purposes of the essay.
Merleau-Ponty, The Primacy of Perception, pg 140
Merleau-Ponty, The Primacy of Perception, pg 140
The syncretic field is the space in which the reciprocal transfer of bodily movements, gestures, and place occurs between bodies via transivitism.
This paragraph is my close reading of the process of the mirror phase that Merleau-Ponty discusses in some depth from pages 121 to 140 in The Primacy of Perception. I believe for the purposes of this essay it is important to understanding the function of the mirror phase in relation to the coupling in the perception of others. See footnote 18.
Merleau-Ponty, The Primacy of Perception, pg 140
Merleau-Ponty, The Primacy of Perception, pg 119
Merleau-Ponty, The Primacy of Perception, pg 118
Merleau-Ponty, The Primacy of Perception, pg 118
Merleau-Ponty, The Primacy of Perception, pg 118
Merleau-Ponty, The Primacy of Perception, pg 115
Sartre, Being and Nothingness, pg 352
Sartre, Being and Nothingness, pg 342
Sartre, Being and Nothingness, pg 339
Sartre, Being and Nothingness, pg 352
Sartre, Being and Nothingness, pg 352
Labels: essay, merleau-ponty, philosophy, ros, sartre
¶ 6:04 pm 1 Comments
PHIL2509 - First Essay
In this essay I will critically examine the account of principle and policy R. Dworkin presents in ‘Hard Cases’. I will explain how Dworkin understands ‘policy’, and how that notion is used as a justification of legal argument. I will then turn to a discussion of Dworkin’s concept of ‘principle’, and explain why he prefers to found his legal understanding upon this idea, rather than that of policy. Once I have clarified Dworkin’s position, I will contrast it with the kind of positivist legal understanding propounded by HLA Hart, who Dworkin explicitly addresses in his essay. Hart has no place for ‘principle’, and his position leaves wide scope for the play of policy in legal rationality. Dworkin heuristically develops a ‘super-judge’, Hercules, and builds a perfect legal system around him. He uses this example to explain his divergence from, and criticisms of, Hartian positivism. In particular, he believes that positivism is flawed because they suffer from an excessively narrow definition of what a legal system is. Further, while Hartian positivists allow judges wide discretionary powers in so called ‘hard cases’ , Dworkin constructs a legal theory that incorporates principles as a fundamental procedure in the judicial decision, and thus rids his system of the need for such discretion.
In ‘Hard Cases’, Dworkin contrasts policy based legal rationality with principle based legal rationality. I will begin this essay by explaining his notion of ‘policy.’ For Dworkin (in a wider political sense), policy is justification based on the collective goals of a wider community. When narrowed to its legal sense he arrives at a conception of policy in law where it is seen as:
a compromise among individual goals and purposes in search of the welfare of the community as a whole.
What Dworkin is saying here is that arguments justified by policy are relying on the changeable goals that the public set out to achieve in order to improve the society in which they live. Dworkin particularly expresses the point that policy overrides the interests of the individual for the sake of the majority. He argues that the goals of the majority are best represented by democracy in parliament as the legislature. For Dworkin, parliament represents the interests of collective bodies, while the courts represent the interests of the individual. Dworkin sees policy as justification for judicial decisions only when this role for the courts has been recognised by the legislature. It is Dworkin’s strongly defended view that since the courts do not operate as legislators that judicial decisions should not be made on grounds of policy. Policy can change quickly with the political climate, which in turn can undermine the power of precedents in those decisions reached in consideration of outmoded policy concerns. For Dworkin, judges should not be making policy decisions – where possible, they should not be making new law, but rather justifying their decisions in terms of history of law. Principles, as will be explained, are much more durable in their historical context, because they do not have their foundations undermined by changing opinion.
This then, is how Dworkin understands the notion of policy. He contrasts it with the notion of principle, which I will now explain. Dworkin’s notion of principle is derived from the political understanding of rights; such as equality. For Dworkin, the legal system contains political rights in so far as the written law aims to uphold them’ such as equality under the law. The influence these rights have over the creation of law is represented not in particular statutes but in the legal system as a whole by guiding notions of what ought to be. The light in which statute ought to be read are principles of law.
Dworkin prefers principles to policy in legal decision making because they have greater stability over time. This greater historical conformity allows for predictability in law and develops a culture within the courts of reaching for overall consistency in decision making and justifications. Judges should consider precedent and principle in making their decisions. Precedent creates consistency in judgement; where there is no precedent they should look to principles, to rights drawn from the decisions of the legislature, rather than to policy considerations as they understand them. This is radically different to a positivist understanding, as we will see. Dworkin argues that public goals are best represented in the democratic political domain. On the other hand, the courts exist for the sole purpose of dialogue between the individual and the law. So, arguments from principle have their roots in the political domain: rights are drawn from the people, not from judges. Rights are held by legal individuals and have direct legal consequence. Dworkin poses the relationship between principle and rights like this:
Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal.
The point highlighted in this quote is the ahistorical nature of arguments from principle, as opposed to the nature of policy based arguments. Dworkin has a place for arguments from policy – but the appropriate body to be making these decisions is not the judiciary, but the legislature.
We have at this point a working understanding of Dworkin’s rights thesis concerning law. I will now turn to a discussion of positivism, and in particular Dworkin’s relationship with it. A detailed account of how the rights thesis works in the courts shows a method of ascertaining a ‘right answer’ on the grounds of consistency. This position renders the positivist line of the allowing judges strong discretion unnecessary; further, Dworkin’s account for the correct role for court and legislature is such that such strong discretion (and its implicit reliance upon policy considerations) is beyond the proper role for the courts. The positivist definition of the legal system neither accounts for political rights nor includes principles. Hart defends the view that the legal system is a clear set of general rules to be applied to particular cases; where such rules are not clearly applicable to a certain set of facts, judges are to use their discretion. The purpose of precedent for positivism is to clarify these general rules, and to guide the judiciary in applying these rules to particular cases. As opposed to the positivist idea that judges are able to look at precedent and utilise it with discretion, Dworkin proposes that judges should look to the legislature’s intentions with regard to rights or principles, and attempt to apply these to the facts of the case.
To outline his differences with positivism, and criticisms of it, Dworkin makes use of an heuristic devise – Hercules, a judge of “superhuman skill, learning, patience and acumen.” He uses this tool to illustrate the process of decision making grounded in principle. The aim here for Dworkin is to illustrate how the rights thesis achieves ‘right answers’. Dworkin’s point is that history dictates only one answer, and Dworkin insists that if judges justify their arguments in historical terms, utilising only arguments of principle, then they can show why their decisions are the correct decisions.
The Hercules thought experiment begins from first principles (legally speaking) – with a constitution. The ideals of the drafters are made manifest within the document – their intentions guide both the drafting, and how this document should in future be interpreted. The legal theory of Hercules will attempt to develop in line with the intentions of the drafters of the constitution, as a document setting out abstract rights and setting out the relative weight of these abstract rights. From Hercules’ interpretation of the constitution, he develops a schema of the legal rights an individual can expect from law. Hercules interprets the statutes of law in reference to his legal theory in order to ascertain the relevant rights and how they apply to cases. If it is made explicit within any given statute that it is such as to over-ride certain constitutional legal rights, then this is permissible, but any decision on statute must still be made with the legal rights that all expect in mind. At every stage Dworkin is adopting a method of justification that rids the need for the judge to rely on her own discretion to justify an argument or reach a decision. Thereby the legal theory intends to incorporate the legal system as a conceptual whole where each argument and decision is historically justified by the influence the principles have over the interpretation of the written law. The legal theory then can establish the most appropriate way of enforcing the law.
We have now discussed how Dworkin’s rights thesis relates to positivism; we can now turn to the issue of how Dworkin deals with precedent. Positivists use precedent as a clarification tool, where the line between the general and the particular is sharpened by the judges’ discretion. For Dworkin precedent is the point at which judicial discretion enters the picture, and the point at which the influence of the legislature diminishes. Precedent is necessary as a tool with which to interpret legislation, but at this point legal decision making is at its most fuzzy and slippery and there is space for policy decisions to enter the picture. Dworkin attempts to close this door. He insists that precedents only informs decisions, and they only do this by the relevance they have to the pending decision, and how influential they are to the legal sphere in which the pending decision resides. He expresses the relationship between the preceding decision and the judge that made the decision and the present case like this:
They [Judges] cite reasons, in the form of precedents and principles, to justify a decision, but it is the decision, not some new and stated rule of law, that these precedents and principles are taken to justify.
If we agree with Dworkin’s statement then we can come to see what he means by the gravitational force of precedents. The place of the precedent in Hercules’ growing theory is both to develop an understanding of the reasons why a particular rule is enforced where it is enforced, and how the enforcement of the rule then affects the overall weighting of legal rights. In effect, allowing precedents into Hercules’ theory in this way, Dworkin argues, is a consideration of ‘fairness’. It allows judges to look at similar cases, the reasons behind the rules, the effect the decision has had on the legal realm as a whole, and then for the judge to be able to interpret it within her own understanding of law. Of course Dworkin insists that:
Hercules, when he defines the gravitational force of a precedent, must take into account only the arguments of principle that justify that precedent.
For if the precedent was justified by policy then the precedent may have very little in common with the pending decision, due to the potential that the aims of such policy may no longer be in force when the pending decision is to be made. To be influenced by a precedent ruling that is aimed at achieving a specific past goal would shape the pending decision in the face of the non-existent goal.
Dworkin’s legal theory uses principle driven precedent as another avenue by which judges can remove their personal discretion from the decision making. By analysing the historical context of precedent, and attributing a weight to the precedent, the precedent can be shown as justifying historical consistency in the decision reached. Historical consistency leads only to ‘right answers’ for Dworkin. He wants principles to apply to the whole field of law generally, as an overwhelming influence on decisions that construct a legal theory in which they replace the strong discretion of positivist legal theory. Principles inform each other under gravitational force and have a bearing (weight) on each case. Whenever principles come into conflict, according to Dworkin’s rights theory, it is within the range of the judge’s legal theory to acknowledge such weight. The validation of principles’ relative weights set against each other are determined by historical context. The historical context of principles extends into the realm of precedents in deciding how much weight one is to give to their arguments; keeping in mind that we are only considering precedents that are justified by principle. Dworkin identifies two maxims that give Hercules the justification to cut the gravitational force of precedents that are identified as mistakes. These are:
If he [Hercules] can show, by arguments of history by appeal to some sense of the legal community, that a particular principle, though it once had sufficient appeal to persuade a legislature or court to a legal decision, has now so little force that it is unlikely to generate any further such decisions, then the argument from fairness that support that principle is undercut. If he can show by arguments of political morality that such a principle, apart from its popularity, is unjust, then the argument from fairness that supports that principle is overridden.
These maxims allow a judge to formulate arguments grounded in principle that justify the removal of mistakes from the court. The inclusion of these maxims in the Hercules’ theory concludes Dworkin’s construction of a model theory on which to base judicial decision making.
In conclusion, Dworkin has seemingly produced an alternative to positivism’s notion of judicial discretion, basing it on the idea of principles. His position makes room for the power of rights in the political domain. Dworkin’s model replaces the need for strong discretion in court with a core reliance on judges developing their own legal theory that necessitate the inclusion of principles within a definition of the legal system. Such a definition is one of the key differences between Dworkin’s rights thesis and positivism. Dworkin’s judges have a different relationship with facts than those of the positivists: his theory allows judges to enter into a dialogue with their subjective interpretation and the tradition of principles. This gets us to the core difference between positivism and Dworkin, their relationship to facts. Dworkin allows his judges no discretion to make law – they discover the right principles by investigating the legislature’s intentions and determining the correct principles to apply in light of these intentions, while under positivism, judges are allowed wide discretion to interpret legislation and precedent in terms of broad policy considerations.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995
M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy, Vol 10. No. 4. (Nov 1991)
S. Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics, Vol 47. No. 1. (Jan 1985)
J. Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review, Vol 40. No. 6. (July 1988)
R. Dworkin, ‘Hard Cases’, Harvard Law Review, Vol 88. No. 6. (Apr. 1975).
R. Dworkin, Taking Rights Seriously. London: Duckworth, 2005
End Notes
‘Hard Cases’ appeared in the April of 1975 in the Harvard Law Review
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
These are cases where the facts appear to be new in some sense, or in a new context, such that established precedent is unable to account for them, and where there is no clear statute that is able to determine the correct procedure.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1061
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1060
Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics. Pg 46
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
The issue of the rights of non-human entities is often raised in criticism of Dworkin. For instance the rights of corporations, and various levels of the state. Critics argue that Dworkin fails to see that rights also apply to the goals of collective bodies such as the state or corporation. However, in legal terms, such bodies are often represented as individuals.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin pits arguments of policy and principle of law against each other in a similar fashion to rights vs. goals in Rawlsian political theory See Rawls A Political Theory of Justice, 1971
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1083
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1084
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1086
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1087
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1089
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1088
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1533
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1092
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1091
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Dworkin uses this term in ‘Hard Cases’ as a signifier of a group of precedents that should no longer hold sway in certain cases. The identification of such precedents Dworkin outlines on pages 1099 and 1100 of ‘Hard Cases’; the means of identification he stresses should be accounted for within the framework of a judge’s theory of law [Dworkin builds the model one on fictional character Hercules].
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1101
.Hart criticises this position as naïvely optimistic. M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy. Pg 367
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1535
In ‘Hard Cases’, Dworkin contrasts policy based legal rationality with principle based legal rationality. I will begin this essay by explaining his notion of ‘policy.’ For Dworkin (in a wider political sense), policy is justification based on the collective goals of a wider community. When narrowed to its legal sense he arrives at a conception of policy in law where it is seen as:
a compromise among individual goals and purposes in search of the welfare of the community as a whole.
What Dworkin is saying here is that arguments justified by policy are relying on the changeable goals that the public set out to achieve in order to improve the society in which they live. Dworkin particularly expresses the point that policy overrides the interests of the individual for the sake of the majority. He argues that the goals of the majority are best represented by democracy in parliament as the legislature. For Dworkin, parliament represents the interests of collective bodies, while the courts represent the interests of the individual. Dworkin sees policy as justification for judicial decisions only when this role for the courts has been recognised by the legislature. It is Dworkin’s strongly defended view that since the courts do not operate as legislators that judicial decisions should not be made on grounds of policy. Policy can change quickly with the political climate, which in turn can undermine the power of precedents in those decisions reached in consideration of outmoded policy concerns. For Dworkin, judges should not be making policy decisions – where possible, they should not be making new law, but rather justifying their decisions in terms of history of law. Principles, as will be explained, are much more durable in their historical context, because they do not have their foundations undermined by changing opinion.
This then, is how Dworkin understands the notion of policy. He contrasts it with the notion of principle, which I will now explain. Dworkin’s notion of principle is derived from the political understanding of rights; such as equality. For Dworkin, the legal system contains political rights in so far as the written law aims to uphold them’ such as equality under the law. The influence these rights have over the creation of law is represented not in particular statutes but in the legal system as a whole by guiding notions of what ought to be. The light in which statute ought to be read are principles of law.
Dworkin prefers principles to policy in legal decision making because they have greater stability over time. This greater historical conformity allows for predictability in law and develops a culture within the courts of reaching for overall consistency in decision making and justifications. Judges should consider precedent and principle in making their decisions. Precedent creates consistency in judgement; where there is no precedent they should look to principles, to rights drawn from the decisions of the legislature, rather than to policy considerations as they understand them. This is radically different to a positivist understanding, as we will see. Dworkin argues that public goals are best represented in the democratic political domain. On the other hand, the courts exist for the sole purpose of dialogue between the individual and the law. So, arguments from principle have their roots in the political domain: rights are drawn from the people, not from judges. Rights are held by legal individuals and have direct legal consequence. Dworkin poses the relationship between principle and rights like this:
Arguments of principle are arguments intended to establish an individual right; arguments of policy are arguments intended to establish a collective goal.
The point highlighted in this quote is the ahistorical nature of arguments from principle, as opposed to the nature of policy based arguments. Dworkin has a place for arguments from policy – but the appropriate body to be making these decisions is not the judiciary, but the legislature.
We have at this point a working understanding of Dworkin’s rights thesis concerning law. I will now turn to a discussion of positivism, and in particular Dworkin’s relationship with it. A detailed account of how the rights thesis works in the courts shows a method of ascertaining a ‘right answer’ on the grounds of consistency. This position renders the positivist line of the allowing judges strong discretion unnecessary; further, Dworkin’s account for the correct role for court and legislature is such that such strong discretion (and its implicit reliance upon policy considerations) is beyond the proper role for the courts. The positivist definition of the legal system neither accounts for political rights nor includes principles. Hart defends the view that the legal system is a clear set of general rules to be applied to particular cases; where such rules are not clearly applicable to a certain set of facts, judges are to use their discretion. The purpose of precedent for positivism is to clarify these general rules, and to guide the judiciary in applying these rules to particular cases. As opposed to the positivist idea that judges are able to look at precedent and utilise it with discretion, Dworkin proposes that judges should look to the legislature’s intentions with regard to rights or principles, and attempt to apply these to the facts of the case.
To outline his differences with positivism, and criticisms of it, Dworkin makes use of an heuristic devise – Hercules, a judge of “superhuman skill, learning, patience and acumen.” He uses this tool to illustrate the process of decision making grounded in principle. The aim here for Dworkin is to illustrate how the rights thesis achieves ‘right answers’. Dworkin’s point is that history dictates only one answer, and Dworkin insists that if judges justify their arguments in historical terms, utilising only arguments of principle, then they can show why their decisions are the correct decisions.
The Hercules thought experiment begins from first principles (legally speaking) – with a constitution. The ideals of the drafters are made manifest within the document – their intentions guide both the drafting, and how this document should in future be interpreted. The legal theory of Hercules will attempt to develop in line with the intentions of the drafters of the constitution, as a document setting out abstract rights and setting out the relative weight of these abstract rights. From Hercules’ interpretation of the constitution, he develops a schema of the legal rights an individual can expect from law. Hercules interprets the statutes of law in reference to his legal theory in order to ascertain the relevant rights and how they apply to cases. If it is made explicit within any given statute that it is such as to over-ride certain constitutional legal rights, then this is permissible, but any decision on statute must still be made with the legal rights that all expect in mind. At every stage Dworkin is adopting a method of justification that rids the need for the judge to rely on her own discretion to justify an argument or reach a decision. Thereby the legal theory intends to incorporate the legal system as a conceptual whole where each argument and decision is historically justified by the influence the principles have over the interpretation of the written law. The legal theory then can establish the most appropriate way of enforcing the law.
We have now discussed how Dworkin’s rights thesis relates to positivism; we can now turn to the issue of how Dworkin deals with precedent. Positivists use precedent as a clarification tool, where the line between the general and the particular is sharpened by the judges’ discretion. For Dworkin precedent is the point at which judicial discretion enters the picture, and the point at which the influence of the legislature diminishes. Precedent is necessary as a tool with which to interpret legislation, but at this point legal decision making is at its most fuzzy and slippery and there is space for policy decisions to enter the picture. Dworkin attempts to close this door. He insists that precedents only informs decisions, and they only do this by the relevance they have to the pending decision, and how influential they are to the legal sphere in which the pending decision resides. He expresses the relationship between the preceding decision and the judge that made the decision and the present case like this:
They [Judges] cite reasons, in the form of precedents and principles, to justify a decision, but it is the decision, not some new and stated rule of law, that these precedents and principles are taken to justify.
If we agree with Dworkin’s statement then we can come to see what he means by the gravitational force of precedents. The place of the precedent in Hercules’ growing theory is both to develop an understanding of the reasons why a particular rule is enforced where it is enforced, and how the enforcement of the rule then affects the overall weighting of legal rights. In effect, allowing precedents into Hercules’ theory in this way, Dworkin argues, is a consideration of ‘fairness’. It allows judges to look at similar cases, the reasons behind the rules, the effect the decision has had on the legal realm as a whole, and then for the judge to be able to interpret it within her own understanding of law. Of course Dworkin insists that:
Hercules, when he defines the gravitational force of a precedent, must take into account only the arguments of principle that justify that precedent.
For if the precedent was justified by policy then the precedent may have very little in common with the pending decision, due to the potential that the aims of such policy may no longer be in force when the pending decision is to be made. To be influenced by a precedent ruling that is aimed at achieving a specific past goal would shape the pending decision in the face of the non-existent goal.
Dworkin’s legal theory uses principle driven precedent as another avenue by which judges can remove their personal discretion from the decision making. By analysing the historical context of precedent, and attributing a weight to the precedent, the precedent can be shown as justifying historical consistency in the decision reached. Historical consistency leads only to ‘right answers’ for Dworkin. He wants principles to apply to the whole field of law generally, as an overwhelming influence on decisions that construct a legal theory in which they replace the strong discretion of positivist legal theory. Principles inform each other under gravitational force and have a bearing (weight) on each case. Whenever principles come into conflict, according to Dworkin’s rights theory, it is within the range of the judge’s legal theory to acknowledge such weight. The validation of principles’ relative weights set against each other are determined by historical context. The historical context of principles extends into the realm of precedents in deciding how much weight one is to give to their arguments; keeping in mind that we are only considering precedents that are justified by principle. Dworkin identifies two maxims that give Hercules the justification to cut the gravitational force of precedents that are identified as mistakes. These are:
If he [Hercules] can show, by arguments of history by appeal to some sense of the legal community, that a particular principle, though it once had sufficient appeal to persuade a legislature or court to a legal decision, has now so little force that it is unlikely to generate any further such decisions, then the argument from fairness that support that principle is undercut. If he can show by arguments of political morality that such a principle, apart from its popularity, is unjust, then the argument from fairness that supports that principle is overridden.
These maxims allow a judge to formulate arguments grounded in principle that justify the removal of mistakes from the court. The inclusion of these maxims in the Hercules’ theory concludes Dworkin’s construction of a model theory on which to base judicial decision making.
In conclusion, Dworkin has seemingly produced an alternative to positivism’s notion of judicial discretion, basing it on the idea of principles. His position makes room for the power of rights in the political domain. Dworkin’s model replaces the need for strong discretion in court with a core reliance on judges developing their own legal theory that necessitate the inclusion of principles within a definition of the legal system. Such a definition is one of the key differences between Dworkin’s rights thesis and positivism. Dworkin’s judges have a different relationship with facts than those of the positivists: his theory allows judges to enter into a dialogue with their subjective interpretation and the tradition of principles. This gets us to the core difference between positivism and Dworkin, their relationship to facts. Dworkin allows his judges no discretion to make law – they discover the right principles by investigating the legislature’s intentions and determining the correct principles to apply in light of these intentions, while under positivism, judges are allowed wide discretion to interpret legislation and precedent in terms of broad policy considerations.
Bibliography
R. Audi (ed.), The Cambridge Dictionary of Philosophy, (edt. 2) Cambridge University Press, 1995
M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy, Vol 10. No. 4. (Nov 1991)
S. Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics, Vol 47. No. 1. (Jan 1985)
J. Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review, Vol 40. No. 6. (July 1988)
R. Dworkin, ‘Hard Cases’, Harvard Law Review, Vol 88. No. 6. (Apr. 1975).
R. Dworkin, Taking Rights Seriously. London: Duckworth, 2005
End Notes
‘Hard Cases’ appeared in the April of 1975 in the Harvard Law Review
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
These are cases where the facts appear to be new in some sense, or in a new context, such that established precedent is unable to account for them, and where there is no clear statute that is able to determine the correct procedure.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1061
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1060
Brubaker, ‘Taking Dworkin Seriously’, The Review of Politics. Pg 46
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
The issue of the rights of non-human entities is often raised in criticism of Dworkin. For instance the rights of corporations, and various levels of the state. Critics argue that Dworkin fails to see that rights also apply to the goals of collective bodies such as the state or corporation. However, in legal terms, such bodies are often represented as individuals.
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1059
Dworkin pits arguments of policy and principle of law against each other in a similar fashion to rights vs. goals in Rawlsian political theory See Rawls A Political Theory of Justice, 1971
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1083
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1084
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1086
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1085
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1087
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1089
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1088
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1090
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1533
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1092
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1091
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1531
Dworkin uses this term in ‘Hard Cases’ as a signifier of a group of precedents that should no longer hold sway in certain cases. The identification of such precedents Dworkin outlines on pages 1099 and 1100 of ‘Hard Cases’; the means of identification he stresses should be accounted for within the framework of a judge’s theory of law [Dworkin builds the model one on fictional character Hercules].
Dworkin, ‘Hard Cases’, Harvard Law Review. Pg 1101
.Hart criticises this position as naïvely optimistic. M. Bayles, ‘Hart vs. Dworkin’, Law and Philosophy. Pg 367
Donato, ‘Dworkin and Subjectivity in Legal Interpretation’, Stanford Law Review. pg 1535
Labels: essay, law, philosophy
¶ 6:02 pm 0 Comments
ta tah
two lay laughing two laugh choking tulip must be joking don't unpack finish phish two by four and eight by six two ten in twenty tulip must be plenty to be truthful tube be full too beautiful tulip must be joking
¶ 1:52 am 0 Comments
Levinas essay notes
presents an account which is ambiguous in an ambiguous style. ascribing a relationship with others as non-distinctly working in two seemingly apposite fields. one field based on knowledge - knowledge in the cultural sense - and another field posited upon a pre-thetical orientation.
knowledge; the other exists on the same plane as the world. the subject grasps the other in the plane of culture. each subject is sedimented in cultural history and is unknowable to themselves without such sedimentation. the sedimentation is not consciously developed nor signified. the sedimentation works in the background. this background has the purpose of setting out in contrast those others and objects that the subject is percieving. without the background perception has nothing to perceive against. one cannot perceive against oneself alone. one cannot perceieve oneself without background. the subject's consciousness is centrifugal. consciousness throws out meaning and receives meaning from the world through a network of understanding built from cultural experience. everyday objects, objects of the world, unknown objects, and language only have meaning through their lateral relationships to the signs. without sedimentation these networks are meaningless - non-existent - and thus the thowing out of meaning and the receiving of meaning would be empty. perceptual data may be received but not perceived. nothing would be perceived because consciousness would not be able to make any sense of the world.
- consciousness is talked about in its extended sense with the use of the sense and the sensed.
the subject knows that the other is in the world perceiving the same world that the subject is perceiving yet it is clear that the other is not another ego. there is a known alterity.
pre-thetical orientation; the other exists inbetween the subject and the world. there is a 'desire' for the experience of the alterity of the other. this is not the totalising effect that knowledge may have in understanding the other, by making the foriegn the same. this is experiencing the other in the presence of something else. there is also an access to the world through this alterity.
the body acheives a reflection by touching itself. it simultaneously is a subject-object. this reflection is extended to the other. the other is never an object. it is not transcended.
knowledge; the other exists on the same plane as the world. the subject grasps the other in the plane of culture. each subject is sedimented in cultural history and is unknowable to themselves without such sedimentation. the sedimentation is not consciously developed nor signified. the sedimentation works in the background. this background has the purpose of setting out in contrast those others and objects that the subject is percieving. without the background perception has nothing to perceive against. one cannot perceive against oneself alone. one cannot perceieve oneself without background. the subject's consciousness is centrifugal. consciousness throws out meaning and receives meaning from the world through a network of understanding built from cultural experience. everyday objects, objects of the world, unknown objects, and language only have meaning through their lateral relationships to the signs. without sedimentation these networks are meaningless - non-existent - and thus the thowing out of meaning and the receiving of meaning would be empty. perceptual data may be received but not perceived. nothing would be perceived because consciousness would not be able to make any sense of the world.
- consciousness is talked about in its extended sense with the use of the sense and the sensed.
the subject knows that the other is in the world perceiving the same world that the subject is perceiving yet it is clear that the other is not another ego. there is a known alterity.
pre-thetical orientation; the other exists inbetween the subject and the world. there is a 'desire' for the experience of the alterity of the other. this is not the totalising effect that knowledge may have in understanding the other, by making the foriegn the same. this is experiencing the other in the presence of something else. there is also an access to the world through this alterity.
the body acheives a reflection by touching itself. it simultaneously is a subject-object. this reflection is extended to the other. the other is never an object. it is not transcended.
Labels: essay, intersubjectivity, levinas, merleau-ponty, notes, ros
¶ 1:28 am 0 Comments