Maatukathe I Session 7

Minutes of Session 7? : 30.03.2013

• Brief outline of previous session
  • Knowledge is a cooperative activity, the stress is on making something together
  • Knowledge requires and implies institutions at the macro and micro level
    • Institution building happens at various levels: Notation (formalising)- reciting mantras, making music; logistics- spatio temporal coordinating; and modes of initiation and mentoring
    • Institutions require cultivating Intellectual virtues: the constant problem for Indian institutions is cultivation of such virtues. most institutions here lack systematization, coordination and the correct identification of resources
      • Its not useful to make a distinction between moral and intellectual virtues (ethos involves a moral notion as well)
  • Capabilites and World views
    • Capabilities are constituted by skills and disciplines, their modes of organisation are not always visible
    • One has the task of conceivig ways to investigate them, make them evident: For instance to ask in what ways capabilities and world views present themselves; whether or in what way world views are weaved into institutions
    • Marxists have focused on 'forces of production' but they have often ignored institutions and capabilities that sustain such forces of production
    • The task of development is to do things in such a way that suffering is reduced and capabilities are restored
  • Writing/ Reading as an institution
    • writing as a deed or an act
    • attention is needed to its composition, not just communication
    • Requires institutions of apprenticeship and initiation - to be aware of standards, to cultivate appreciation for certain texts
  • Reading is a mode of conversation
    • it is a reflective action- thinkingly doing something
    • It is talking to someone from a different time and place with a different focus than one's immediate concerns
    • It must make the text yield some answers to your questions
    • Its important to sift what the main worry of the text is in order to arrive at significant distinctions
  • There are two modes of apprehending institutions and its accompanying discourse
    • I. Narration II. Social Sciences
• Some remarks on Ancient Greece and its Institutions
  • Aristotle's notion of 'zoon politikon' contains implications that man forms associations by nature and tries to live well.
  • In his Cratylos, Plato raises a question about law and speech- are they founded on agreement or in nature? Are they conventional or generated?
  • Plato argues that language is not merely setting conventions, but generating a system of definitions or rules.
  • In the Greek notion community was divided into 3 spheres: Oikos (household)- the sphere of necessity, Polis( city council)- sphere of freedom, and thus space for deliberation, and Agora (public square) - place for gathering, for markets, festivals and discussions
  • It also had institutions like the symposium, and many schools which taught rhetoric and dialectic
• Dworkin on 'Is Law a system of Rules? - Discussion I
  • Dworkin takes on the positivist view of law in this essay. Positivists deal with only that which is positively observable. For instance scientific theories are a summation of observations. In the case of law such observables are rules
  • Dworkin asking if the positivist view of law as a system of rules best captures law as a practice; for instance how do you observe the functioning of law in a perfectly well behaved community?
  • The basic tenet of positivist conception of law by Austin is that society forms certain rules and it is enforced by a sovereign, or some person who has the power to enforce such rules. He sorts such rules into legal, moral and religious
  • Where is the source of Austin's idea that the authority commands law?
    • Medieval christian theologians worked with categories received from Aristotelian scholarship. but for the Greeks, ruling the world was techne not episteme
    • The christian theologians transformed the city into the 'city of God' - polis became cosmopolis, and thus law becomes command
    • Austin conceptually goes back to the Natural Law but by rejecting the idea of natural law (as rooted in the sovereign and his commands)
  • H.L.A Hart introduces a refinement in Austin's theory with what he calls rules of recognition.
  • At a given point of time standard of behaviour can be understood and the deviation from it can be seen
  • Dworkin makes a further distinction between rules and principles- by which he means standards other than rules. principles cannot be seen as right or wrong, while rules are absolute with exceptions.
  • An example of standards operating can be seen in the activity of literary criticism. Literary criticism does not show us judgements in itself, but shows the process of arriving at certain distinctions.
  • Law always speaks to the society’s, people’s conception of a good life, and expands notions of standards. It keeps the society;s good and intuitions of justice alive. Law is not an arbitrary doing and making, but in the process of legal practice something more than rules are discovered.
  • Rules can be condified, while principles are intuitions of society, that which is in excess of rules
  • Law works on interpretations, but principles are more than rule interpretation