[lit-ideas] Re: A Wittgensteinian decision or a Popn one?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 12 Dec 2007 02:55:24 +0000 (GMT)
In earlier post "the legal culture's cult of 'literal-minded'" should have
been either " the 'literal-minded'" or " 'literal-mindedness'",ahem.
My suggestion is that, while the law draws an understandable distinction
between a 'literal' and a 'purposive' construction, that all constructions
are importantly 'purposive' - for the 'literal' view will give way to a
non-literal construction when the 'literal' view is seen as 'unfit for
purpose'.
In that light, comments below:-
> After trading a controlled substance for a pistol, petitioner
> Watson was indicted for, inter alia, violating 18 U. S.
> C. sec.924(c)(1)(A), which sets a mandatory minimum sentence,
> depending on the facts, for a defendant who, "during and
> in relation to any ... drug trafficking crime[,] ... uses
> ... a firearm." The statute does not define "uses," but
> this Court has spoken to it twice.
What is the purpose of the statute? To stop the trade in drugs for guns? Or
to ensure that at sentence the fact the drug-trafficker was armed, for the
purpose of assisting his trafficking by the use or threat of armed violence,
will be taken as an aggravating factor in the commission of the offence?
The meaning of 'use' in context must surely relate to the perceived purpose
of the rule and cannot be derived from general considerations of the
'ordinary or natural meaning' of 'use'?
If this is Wittgenstn. so be it; but it also Poppn. in that Popper would
emphasise that all terms are systematically ambiguous and that their
interpretation can only be done as part of a theoretical construction of the
overall text - in particular by considering the specific problems that text
sought to address [a point Pop frequently made against academic
interpretations of texts, including his own, is that they failed adequately
to undertand the text as an attempt at solving specific problems].
Consequently the following approach is weakminded...
>In holding that "a criminal
> who trades his firearm for drugs 'uses' it ... within the
> meaning of sec.924(c)(1)," Smith v. United States, 508
> U. S. 223 , the Court rested primarily on the "ordinary
> or natural meaning" of the verb in context, id., at 228,
> understanding its common range as going beyond employment
> as a weapon to trading a weapon for drugs, id., at 230.
Rubbish, because not based on asking what is the specific problem that the
text is seeking to address. They might equally have said someone who
possesses a gun _with intent to use_ it to further his trafficking (if need
be) does not fall within the section unless he fires or brandishes the gun -
because he has not so used it; after all ordinary language would say that if
I own a car but on Monday do not drive it, I cannot be guilty of using it on
Monday even though I may have possessed it and intended to drive it if
circumstances required.
> Later, in holding that merely possessing a firearm kept
> near the scene of drug trafficking is not "use" under sec.924(c)(1),
> the Court, in Bailey v. United States, 516 U. S. 137 ,
> again looked to "ordinary or natural" meaning, id., at
> 145, deciding that "sec.924(c)(1) requires evidence sufficient
> to show an active employment of the firearm by the defendant,
> a use that makes the firearm an operative factor in relation
> to the predicate offense," id., at 143.
This argument as to "active employment" is not as lame-brained as the first
imvho, because while it is true to say that the purpose of possessing the
firearm may be in anticipation of its use, that must ordinarily be
distinguished from actual 'use' - the key being that the 'possession' is at a
remove from 'possession on the person' or 'immediate' thereabouts. The law
must draw a line somewhere here - otherwise a drug trafficker who kept a gun
200 miles from the scene of the trafficking would be guilty of the aggravated
form of 'trafficking' if, say, he intended to use the gun in a drug-related
reprisal should he be attacked, robbed etc.
It is considerations of the kinds of problem the text is designed to address,
and equally of those it is not designed to address, that I suggest really
underlie the jurisprudence - for these are the things lawyers may raise in
court in their submissions. Often these submissions are dealt with in a most
cursory way in the judgment which may rest on some quite narrow 'reasoning',
like 'ordinary meaning', but the point still holds. In other words the use of
the 'ordinary meaning' explanation may sometimes be a kind of
'window-dressing' that disguises the underlying reasons that motivate the
court _to interpret 'ordinary meaning'_ as they do.
Simple example:- man drives someone else's expensive car deliberately into
expensive railings. Statute says there is no power in criminal proceedings to
make the man pay for any of the damage if the "damage arises from an accident
involving an insured vehicle". The man was insured to drive the car. Was it
"an accident"?
Ordinary language might say that deliberately doing an act cannot be "an
accident".
But ordinary language is ambiguous. We use "accident" in two ways. We might
say 'it was just an accident' in the sense that no one was at fault. But
equally we might say there was an accident on the motorway without thereby
claiming no one was at fault i.e. we use 'accident' to mean 'incident
involving damage'.
Which meaning should we adopt here? Well, there are two arguments. One is to
consider the purpose of the rule - which is that where the insurance
companies will cover the damage it is not the function of the criminal courts
to interfere in this civil process by making compensation orders against the
defendant. This is bolstered by a second point, which is not one of ordinary
language per se but one of 'redundancy' viz. that before a compensation order
can be made, the defendant must be guilty of a criminal offence, and
therefore - 'ipso facto' - cannot have been acting without fault. The view
'accident' here means 'no one at fault' would render the section superfluous
and as meaning - absurdly - that 'where a defendant in an insured vehicle
acts without fault and commits no offence, there is no power to make a
criminal compensation order against him'. But this is true of every class of
blameless defendant and not just those in insured vehicles and so goes
without saying - so that it would be aburd to think that is what the section
is trying to say.
A better example: 'Is duress a defence to murder?' Lot of what underlies the
English House of Lords ruling, in RvHowe, is - I suggest - not really talked
about in the judgment.
And, a personal favourite, HuntervChiefConstableofWestMidlands - a truly
hilarious and frightening case where the courts seek to stop the Birmingham
Six from suing the police for violent assault during their detention before
trial, since their success would be "an appalling vista" in the words of Lord
Denning i.e. not least because it would mean that an English jury in a civil
case found the assaults probable while such allegations had been dismissed by
the trial judge (who was now a Law Lord) on the basis that he was sure they
were untrue, and thus the admissions they made under interrogation were
admissible in law to convict them. [They were released some years later, as
you may know].
Donal
Not entirely happy with the rigor of the SC's reasoning either
May post more
Once they let out for contempt
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