[lit-ideas] Re: A Wittgensteinian decision or a Popn one?
- From: Robert Paul <rpaul@xxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Wed, 12 Dec 2007 12:31:53 -0800
Donal,
This is interesting stuff but it seems to be set out in opposition to a
claim that was never made, viz, that an appeal to 'ordinary language,'
was the best and only way to interpret statutes or legal principles.
I do maintain though that any attempt to give meanings to words (the
sand pile objection) that depart radically from their ordinary ones _in
order to give the statute itself a meaning advantageous to (say) the
prosecution_ is bad practice. I'm not sure whether it's casuistry or
sophistry but it comes from the same family.
re 'Is duress a defense to murder?' ['Is that the defendant acted under
duress a defense against a charge of murder?']
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.
What is voluntary (or intentional, perhaps) under one description need
not be so under another. If I enter a room in order to hear a lecture
I will (under normal circumstances) introduce an additional source of
heat. Did I voluntarily/intentionally introduce another source of heat
into the room? Yes; but that was not my intention (in this story), as it
might have been had I gone into a tent with a couple of companions in a
blizzard, so that our combined body heat would warm us all.
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.
I don't know what an 'ordinary attitude' is. This would seem of interest
to sociologists. I'm not sure what it has to do with the meanings of
words. 'The ordinary attitude toward snakes is that they're all
dangerous.' No word meanings are at issue here, whether or not the
'ordinary attitude' is correct.
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.
Surely, at law murder is an 'intentional and voluntary act.' The 'real
difference' seems to be made of whole metaphysical cloth. In ordinary
language one would say that the judges (?) decided that a defense that
an act was done under duress would not apply here simply from
expediency. And from expediency no principle can be extracted.
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.
Surely, the mere assertion that 'they made me do it' is an insufficient
defense and would be in lesser cases too. Evidence that such a threat
was made, the nature of the threat, etc., would be essential to ruling
any way at all on such a case. 'If you don't shoot this fellow, we'll
put all three of your young daughters into the chipper, à la Fargo, and
meanwhile we'll keep tightening the vise on your genitals.' Ha! say the
judges, completely beside the point! This is not a re-interpretation of
the word 'duress.' It is ignoring duress completely.
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.
That ordinary language is clearly inadequate here has not been shown.
The judges know what duress is perfectly well; they choose to ignore it
in certain circumstances, out of expediency. (I'd really like to see an
argument that the case I imagined above 'isn't really duress.')
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.
If this means (as in the case in which the Supremes ruled, in PARENTS
INVOLVED IN COMMUNITY SCHOOLS v.SEATTLE SCHOOL DIST. NO. 1, that
2 + 2 = 5, this is absolutely true; but, I should think, irrelevant to
whether when word meanings are contested appeals to common and ordinary
usage do and should carry weight _in undertstanding what a law means_.
Here's some sophistry from Justice Roberts on PARENTS
'Before Brown, schoolchildren were told where they could and could not
go to school based on the color of their skin. The school districts in
these cases have not carried the heavy burden of demonstrating that we
should allow this once again—even for very different reasons. For
schools that never segregated on the basis of race, such as Seattle, or
that have removed the vestiges of past segregation, such as Jefferson
County, the way “to achieve a system of determining admission to the
public schools on a nonracial basis,” Brown II, 349 U. S., at 300–301,
is to stop assigning students on a racial basis. The way to stop
discrimination on the basis of race is to stop discriminating on the
basis of race.
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.
I'll try to put it simply, although I've said some of this before. I'm
not setting out a theory 'statutes should be interpreted according to
the ordinary meanings of their component terms,' but instead claiming
that in contentious cases, where the meaning of a word, or words, is at
stake, ordinary language should not be ignored, and in fact should be
appealed to initially. Some words in statutes will be legal terms of art
about which 'ordinary people' have no beliefs at all. But justice would
not be well-served if someone contracted to buy a 'fine, three year old
Arabian horse,' and received a plaster model of a horse made three
years ago in Riyahd. On one view the buyer would apparently have no
recourse because the meaning of 'horse' is inherently vague and elusive.
Yours faithfully,
Robert Paul
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