[lit-ideas] Re: A Wittgensteinian decision or a Popn one?
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Thu, 13 Dec 2007 01:53:50 +0000 (GMT)
Please bear in mind it is some years since I read Howe or Hunter or studied
the intricacies of the law of duress..nevertheless that may not be that
important..
--- Robert Paul <rpaul@xxxxxxxx> wrote:
> 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.
Before I was so rudely interrupted by the 'Boosh'[see prev. post], I was
saying that the decision in Howe might well have been different if other
facts were different. The reality is that in this country a person forced at
gunpoint to drive killers to a place where they shot someone, perhaps with
his family held at gunpoint too, would -_provided his story were believed, of
course_- not likely be prosecuted: because 'it would not be in the public
interest' to prosecute. Even if we vary the facts and the person drives
suicide bombers who kill hundreds, and is prosecuted, there are ways he might
be released early, pardoned etc; he might also not be prosecuted for murder
even though this is legally possible, again because such a charge is felt
'not to be in the public interest'. Here things like the climate of public
opinion, and the politics of the government of the day, - not always very
principled things - may affect the outcome.
Though you oppose 'expediency' and 'principle' as if one were morally
defective and the other morally pure, the reality is (as I'm sure you know)
more complicated - a great deal of justice can only be done by some deviation
from so-called 'principle', and the law is endlessly compromised in applying
its principles by the fact most principles have competing principles and the
law must seek a practical resolution within finite human time and resources.
It is also wrong to think there can be no 'principle' behind Howe - its
upshot is that while a citizen may with impunity give in to force up to the
point of murder, at the point of engaging in murder the citizen must resist
even if this means losing his own life otherwise be judged a murderer. But as
said above, even this 'principle' would not likely be adhered to in a genuine
case.
We turn to how terrorists etc. might exploit duress as a defence to murder
were that defence allowed..
snip
> Surely, the mere assertion that 'they made me do it' is an insufficient
> defense and would be in lesser cases too.
No. This confuses the existence of the defence with adequacy of proof. 'Mere
assertion' of this sort may not often amount to adequate proof - especially
where there is no corroboration; but this would not make it an "insufficient
defence" in that it would not mean that no such defence existed, could be
raised, and may in fact succeed even without corroboration. In fact, the
duress-defence nearly always involves the accused testifying that 'they made
me do it' and how. The credibility of that testimony may be key.
We might require "corroboration" as a matter of law, but English law has
generally been loathe to impose "corroboration" requirements. In any case,
what if another in the alleged gang also raised 'duress' - would this be
corroboration? And what if one of the alleged gang admitted the accused acted
only on threat of death, would this be corroboration - it would seem to be on
the normal legal definition, yet the counterargument would be that the
testimony was just to get a fellow member off the hook.
The way prosecutions negate any such suggestion in practice, in offences
failing short of murder, is to mount surveillance over a long period which
proves the association of the group-members in ways inconsistent with duress
and also their separation from each other in ways that shows they had ample
opportunity to involve the authorities.
However, in cases where prior association or other evidence negating duress
could not be shown, the availability of the defence would allow all gang
members to allege it of each other - and seek separate trials on the basis
that they could not fairly be tried together.
>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.
The judge just rules on whether there is sufficient evidence for the defence
to be put before the jury. For example, in the case of an assault where the
accused claims self-defence, this must be raised by some evidence - either
from the accused himself by testimony or in interview, or from some other
witness, or CCTV etc.; but if the accused says nothing in court or in
interview, and there is no other witness to 'self-defence', the judge will
direct the jury not to consider it as a possibility. However, if the accused
merely says at the end of an interview in which he otherwise says nothing, 'I
acted in self defence', this is [was?] sufficient in English law to raise
that defence [even if the accused does not testify and there is no 'other
witness']. This gives some idea of how low the threshold is before there is
_some evidence_ on which a jury _could possibly_ find that the defence
existed. So, while other systems have other rules, the mere assertion that 'I
acted under duress' might well be enough in English law to raise the defence.
If this seems absurd, consider that English law equally allows the
uncorroborated and one-off statement, 'Yes I did it', to be sufficient
evidence of guilt as a confession.
Hence I don't feel I understand the point made next..
'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.
> > 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.
Well, perhaps not conclusively, but then what is? - What then would, in
Robert Paul's view, show it is "clearly inadequate"? Or this something that
could never be shown because the 'adequacy' of ordinary language is
irrefutable?
But perhaps given earlier and later remarks we are largely at crosspurposes
here: I am emphasising the extent to which OL has little or no role and
Robert Paul is emphasising the extent to which it still has some role and
even sometimes an important and decisive role. What we may disagree on more
is the extent to which appeals to OL are often problematic because it is
multi-faceted, ambiguous, nebulous etc.
> 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.')
The judges in Howe aren't ignoring 'duress' - they are not pretending it did
not exist, merely deciding that its existence is not a defence. (I'd like to
better understand "the case..imagined above" and its point).
snip
> 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,
Not altogether no - definitely not.
>and in fact should be
> appealed to initially.
Not necessarily: because it may be that the best initial appeal is based on
reasons why the specific 'meaning' cannot be the 'ordinary meaning'.
>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.
I don't know. I tend to agree with this entirely, but part of me thinks the
buying and selling of these horses is really unjust and the substitution of
plaster models would be preferable.
>On one view the buyer would apparently have no
> recourse because the meaning of 'horse' is inherently vague and elusive.
This is definitely not my view. Perhaps, as indicated, we are at
crosspurposes or cross-emphasis?
Unfaithfully yours,
Donal
Boosh-whacked
___________________________________________________________
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
Other related posts:
