[lit-ideas] The proper understanding of "properly understand": a legal case
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sat, 30 Jun 2012 20:55:36 +0100 (BST)
As to
“properly understand”, the sense of this phrase in the groves of academe [with
its perhaps marked ‘politesse’ and deference to relevant authorities] may be
rather different than in the legal world – though here a more commonly used
phrase might be “proper understanding”, as in the “proper understanding or
correct interpretation…” of the relevant wording.
It may
be understandable that someone somewhere is put more than on their mettle that
a “key tenet”,
which they do not accept as part of a text they have long studied, is claimed
to be essential for a proper understanding of that text. Such a claim might
even provoke an adverse emotional reaction. But the highest courts are now
usually
more philosophical about this sort of thing, and tend not to withdraw from
further discussion simply because a claim of this provocative character is
made.
Perhaps an
example then: at the end of the nineteenth century ‘Denman’s Act’ was enacted in
England to give an accused the right to testify in their own defence
[incredible as it may seem, prior to this point they were prohibited from doing
so – even in a case of self-defence]. Along with this new right came provisions
as to the circumstances in which the credibility of an accused who testified
could
be challenged, for example by adducing their previous convictions. Within the
next decade or so, the equivalent of the modern Supreme Court [then known as
the House of Lords] made several momentous decisions on the proper
understanding of these provisions; and, in the wake of these landmark
decisions, many further cases addressing further points were decided in ensuing
decades.
About
seventy years after the original legislation, another case on these provisions
reached the House of Lords [as was]. This was legislation which the House of
Lords had by then studied and indeed ruled on for that time, being the highest
legal authority on such matters in the realm as regards its “proper
understanding”, and on which inferior courts had also made rulings - none of
which deviated from the House of Lords’ rulings. Despite this, the lawyer
presenting this appeal dared to suggest that the understanding of the
provisions adopted back at the beginning of the century was not the correct or
proper understanding. The lawyer had no legal authority for this daring
suggestion of course, certainly not in the form of case law, as all the
decisions of the House of Lords itself were against him and so were those of
inferior courts. But while acknowledging this lack of legal authority,
nevertheless
the lawyer focused closely on the wording of the provisions themselves and what
the lawyer then argued was a better construction [or “proper understanding”] of
their effect. The lawyer was emboldened to present this novel argument by a
recent decision of the House of Lords itself, in which the House of Lords
[perhaps having been swung by a thorough-going ‘fallibilism’ of Popper’s sort]
reversed the law that held no House of Lords’ decision could be overturned,
even by a
subsequent decision of the House of Lords. The lawyer was in effect asking the
House of Lords to overrule its previous decisions many years before by looking
again at the wording of the provisions and their correct or "proper"
interpretation.
Far from
dismissing this novel argument ‘out of court’, the House of Lords carefully
considered it, and tested it by question and counter-argument. After much
courtroom debate, the House of Lords gave their decision. Their Lordships began
by expressing the view that this novel construction was more logical and indeed
had
more merit - in every respect save one - than the construction that had been
adopted many years ago. [While suggesting that part of the problem was simply
that no one had canvassed such a construction before]. Their Lordships even
expressed the view that, had anyone argued this new construction all those
years ago, it would have prevailed. If it had then prevailed, the whole course
of the development of the law would likely have been changed, perhaps even
fundamentally, and perhaps for the better [certainly some problematic detours
might have been avoided].
The practical
problem was that the lawyer was in effect saying there were firmer, better
foundations for the “proper understanding” of the legislation than those laid
down years ago: but while that may well be so, putting those new, better
foundations in place would involve tearing down the whole edifice which had
been gradually erected on the old foundations. Whatever the greater merits of
the new construction, for this reason alone it was too late in the day to adopt
it.
We might
note here the ‘philosophical’ character of House of Lords' response to this
challenge
to its own decisions, as well as the fallibilism inherent in its 1965 'decision'
that it could overrule or depart from its own previous decisions. But in
adopting the practical reason it did for dismissing the new construction, the
House of Lords was using a kind of practical consideration that cannot generally
avail anyone who refuses to countenance an interpretation of a text that
differs from their own view, no matter how long-held and perhaps even cherished.
Public confidence is at the forefront of the considerations taken into account
by the House of Lords, and the cut and thrust of argument is the lifeblood of
deciding on the merits in the legal field. It would hardly enhance public
confidence in those entrusted with deciding the most important points of law,
if such a body were to withdraw from further discussion at any suggestion that
its previously held views
may not have reflected a correct or “proper
understanding” of the legal text under
consideration.
Donal
May the Lord have mercy on my soul
Salop
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