[lit-ideas] Re: A Wittgensteinian decision or a Popn one?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 12 Dec 2007 11:51:12 +0000 (GMT)
> 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].
There are plenty of hilarious and frightening cases in
law; but we seem
to have left the original topic far behind.
Robert Paul
(out on bail)
----------
Donal (replying):-
Hope to address some of your other points later, but meantime while I think I
understand why you might think these cases leave the "original topic" far
behind (you do not define the topic v. precisely - I'pose it is the role of
'ordinary language' as a barometer of meaning in legal contexts), they are
pertinent in at least two ways.
1) They show a clear limitation in the 'ordinary language' approach.
In Howe both the terms 'duress' and 'murder' are terms of ordinary language.
Why does the House of Lords not resolve the question by considering their
ordinary language meanings and then considering whether, given them, duress
is a defence [or not]? There are many reasons; but chief among them is that
this would be a poor way to address the specific problem that the law faces
here - and it is addressing this properly that the HLs is concerned with: ie.
that their ruling be the best solution to the specific problem raised.
I might add that in ordinary language a person who acts only under duress
does not act voluntarily in the sense that makes them morally responsible: if
I sign a contract because it is either my signature or my brains on the
paper, then while my signing is a voluntary physical movement [my arm is not
simply blown by the wind] it is not a voluntary act in the sense of one that
I am morally responsible for. Why? Because the ordinary attitude would surely
be that it is not reasonable to expect people not to comply with such a
threat, and therefore not reasonable for the law to hold them to the normal
consequences of such an act. Equally in ordinary language 'murder' is an
intentional and voluntary act. Putting this together, we might say that
'ordinary language' favours the view that duress should be a defence. _But
this is really of no weight to the HL's because of the character of the
specific problem here as they see it_. And they see that there is a real
difference between allowing duress as a defence in almost every other area,
including crime short of murder, and allowing it as a defence for murder: the
specific problem is not the same as all those others and therefore it does
not follow from the generality of duress as a defence that it should be
allowed as a defence to murder.
Indeed, the question is really one of high policy - should the state withdraw
its threat because a person acts under the threat of a criminal or terrorist?
Put this way, the answer is no. One of the 'hidden' aspects of the case is
that if the answer were 'yes' it would create an escape route for any
terrorist/criminal [ie. 'they made me do it'] and this would be a disaster
both as a matter of 'policy' and for public confidence in the law [such as it
is]. So ordinary language be damned, really; when it comes down to it, the
character of the specific problem is what governs the solution here.
Similarly in Hunter the term 'abuse of' and 'process' [here as in legal
process] are ordinary terms. We may speak of someone's act being 'an abuse'
of the 'process'/'system'. But the HL's do not appeal to ordinary language -
which is, despite what you say, too nebulous to be an adequate basis for
deciding the case _given what is at stake_ ie. the specific legal problem or
situation and its ramifications.
That OrdLang is clearly inadequate here does not take us far from the topic
at all.
2) Which is implicit in the above:- they are good examples of cases where the
'reasoning/terms of the judgment' do not fully or even adequately reveal the
underlying reasons that motivate the decision reached.
It must be borne in mind that 'legal reasons/terms of the judgment' do not
seek to be a fully-argued case for the decision showing it is better than any
other given every consideration:- after all, the court is not seeking to
persuade so much as making a decision. What it offers is at best adequate
support for its decision given various factors: the existing legal framework,
public confidence, the consequences of the decision on the system etc.
3) Putting 1) and 2) together: I am saying these cases are not mere
exceptions to the rule that OrdLang is useful a tool; rather OL is useful a
tool only given problems of a specific character. Also that when courts
resort to appeals to OL in reaching a decision we should not perhaps take
this too seriously, particularly given the nebulous, ambiguous, multi-faceted
character of OL: rather OL is a convenient tool to give 'adequate support' to
the decision reached without engaging in a wide-ranging justification for
that decision as being preferable to any other alternative.
Donal
Donal
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