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 > > > ___________________________________________________________ > Support the World Aids Awareness campaign this month with Yahoo! For Good > http://uk.promotions.yahoo.com/forgood/ > ------------------------------------------------------------------ > To change your Lit-Ideas settings (subscribe/unsub, vacation on/off, > digest on/off), visit www.andreas.com/faq-lit-ideas.html > ------------------------------------------------------------------ To change your Lit-Ideas settings (subscribe/unsub, vacation on/off, digest on/off), visit www.andreas.com/faq-lit-ideas.html