[lit-ideas] Re: A Wittgensteinian decision or a Popn one?
- From: wokshevs@xxxxxx
- To: lit-ideas@xxxxxxxxxxxxx, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- Date: Wed, 12 Dec 2007 15:38:48 -0330
Interestingly, Witters had two different words in his lexicon for "use." So the
saying "the meaning is its use" has at least 2 possible meanings depending upon
which word for "use" is used. "Gebrauchen" is one, but I no longer recall the
other German word. (Not "Verbrauchen" as in "to use up.") Nor can I recall the
distinction in meaning between them. I do recall, however, that once upon a
time I thought there was a real difference and point to the linguistic
distinction. The secondary lit made much hay about it - including, I think, the
great Baker and Hacker texts.
Walter O
MUN
Quoting Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>:
> 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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