Correspondence
| DOI | http://doi.org/10.1111/j.1468-2230.1986.tb01711.x |
| Published date | 01 September 1986 |
| Date | 01 September 1986 |
CORRESPONDENCE
COMPUTERS
AND
PAR~CULARS
RICHARD
Susskind in his article
on
my book,
The
Unity
of
Law and
Morality,
(1986) 49
M.L.R.
125, misreads and misquotes my argument.
Notwithstanding the fact that Zenon Bankowski ably defended the true
argument in his comment immediately following the article,
I
think the
true text (as well as the true argument) ought
to
be reasserted.
I
wrote:
“But beyond that absolute [a legal rule], transcending it, ever present and
available for hard decision, are particulars. And
so
long as there is law, not
leviathan, as there is
so
long as
I
am free to unprogramme myself, single cases
are available to reassert these particulars.”
Susskind reads and (when he quotes the passage) writes “unprogramme”
as “programme”; and the
whole
argument is thereby lost. For deciding
hard cases is not, as Susskind thinks it is, and as every legal positivist
known to me thinks it is, a matter
of
adopting another more precise and
more highly defined universal (another programme); it is a matter
of
deciding in respect
of
a particular or set
of
particulars. The distinction is,
perhaps, not well understood.
Let
X
stand for the most complete, highly defined description
of
the
world (such a thing,
of
course, would be beyond human power
to
accomplish). Now, compare the universal,
X,
with a simple one, say,
bigness.
I
am
no
closer
to
the particularity
of
the world by saying “the
world is
X
than
I
am by saying “the world is big.” The distinction
between particulars and universals is radical, not one
of
degree. And it
defines the whole ground
of
metaphysics (as Wittgenstein held, what
is
mysterious is not “how” (all the universals
of
the world) but “that” (its
existence, its particularity)). But it is
a
distinction that Susskind never
makes. Consequently, the decision
of
hard cases is seen as the adoption
of
a
more highly defined universal: in the metaphor
of
the computer just
another case
of
the judge programming himself. I wrote “unprogramme”
to make the point that at the ultimate point
of
hard decision
no
universal
(no
programme) obtains. Without this distinction my argument is
nonsensical.
Unfortunately, Susskind’s mistake is not just a slip: the misreading
pervades his article. For example, he writes: “For Detmold, legal reasoning
is about classifying particulars” (p. 132). Classifying particulars is
a
universalising activity. One
of
Susskind‘s main claims is that my work is
consistent with Hart’s. In this regard, he writes:
“When Detmold argues that ‘beyond that absolute, [created by a rule]
transcending it, ever present and available for hard decision, are particulars’
I
do not think he is saying much more than Hart when he tells us that ‘(f)act
situations do not await us neatly labelled, creased, and folded; nor is their
legal classification written on them to be simply read off by the judge”’
(p.
138).
The question for Hart is clearly classification, a universalising process; and
the distinction between us is a radical one.
It
is
true, as Susskind says, that
I
know little about computers. When
I
wrote my book
I
felt free not to inform myself further because
I
felt free
682
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