[lit-ideas] Re: Armi ed armature
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 3 Mar 2016 18:03:29 +0000 (UTC)
While your away, David, this is from another thread clear as mud.
McEvoy:
"In favour of allowing a policy against "welfare tourism" would be [an]
analysis"
of the conceptual kind -- I assume*
"that the over-riding purpose of the European Union is to give effect to
"union" where this has economic or political advantages - but there is no
economic or political advantage from "welfare tourism" (of the sort within
that purpose: economic 'advantage' of sorts for poorer states, in off-loading
their benefit-claimants to other countries, is outside that purpose). The
outcome is clear enough. Yet the problem in legal terms"
-- in legal conceptual terms, one assumes -- but I grant that may implicate
also in "problem-solving" terms.>**
Where I have added asterisks, my initial comments are* Don't assume anything of
the sort. I (obviously) meant a PS-analysis: hence the reference to
"over-riding purpose" - which is substantive purpose rather than merely
'analytic' purpose.
** It is not plausible that the courts are here analysing concepts rather than
solving problems: it is understanding the problem-situation that governs how
the relevant concepts are applied.
There are two major examples of this in Patmalniece and they are central to the
case: (1) the distinction between direct and indirect discrimination (2) the
view of what constitutes considerations "independent of nationality".
In neither case can the majority view be plausibly understood as resulting from
'looking at the relevant concepts' and then 'analysing them' and then reaching
a conclusion based on that 'analysis'; on the contrary, their approach seems
obviously 'result-led' - with the BSC deciding what is the right conclusion as
a solution to the problem and then applying the concepts accordingly _as
instruments to effect the preferred solution_ and where _the solution is not
preferred on conceptual grounds but on substantive ones_.
Thus Patelniece is a very good example to bring out the implausibility of
explaining the law as an exercise in CA whereas it illustrates very well, even
in its very expediency of reasoning, how law is a form of PS.
This may be amplified in relation to (1) and (2), as follows.
As regards (1), the BSC had to find the 'right to reside' discrimination is
indirect otherwise it could not be justified (given that direct discrimination
is always unlawful [though the court even explores their wriggle-room on
this]). The BSC had to find and so the BSC did find. Some level of reason is
given in support, namely that not all members of the category of "Union
Citizens" are thereby directly affected because some will satisfy the 'right to
reside additional requirements'. But it is clear enough what is the dog and
what is the tail here: the dog is the need to find the discrimination indirect
(so to enable finding it justified) and the tail is the reason. This becomes
clear when we look at the tail wagging here and how that tail would not be
accepted as wagging adequately in the context of other problems - when we look
at how direct and indirect discrimination is judged in other contexts e.g. sex
discrimination within domestic law: here it would constitute direct and not
merely indirect discrimination if an employer said all males would be
considered for a job as an engineer and also all females with large breasts,
and there would be no gainsaying this by claiming it is only 'indirect' because
some females would satisfy this additional "large breasts" test [see majority
view of the House of Lords in James v Eastleigh BC] .
In his dissenting judgment Lord Walker indicates the difficulties in
formulating a test for distinguishing direct from indirect discrimination: "In
my view this is too narrow a definition. As Lord Mance said in R (E) v
Governing Body of JFS [2010] 2 AC 728, para 89, approving a submission from
Miss Rose QC, “an organisation which admitted all men but only women graduates
would be engaged in direct discrimination on the grounds of sex.” The Advocate
General’s proposed test works only if in this example the categories are
limited to cohorts of non-graduates (or, in the well-known case of James v
Eastleigh Borough Council [1990] 2 AC 751, to cohorts of men and women over 60
years but under 65 years of age)." In this passage Lord Walker makes clear that
there can be direct discrimination even though some of the group discriminated
against can satisfy the discriminatory condition. This shows that the reason
given for classifying the Patmalniece discrimination as "indirect" is not at
all 'conceptually' watertight.
As regards (1), the truth is that no judge, either in the BSC or in the EC or
elsewhere, provides any sufficiently firm or robust "conceptual analysis" of
the difference between direct and indirect discrimination from which a
'conceptual analyst' could validly determine why the 'right to reside
additional requirement' is only indirect discrimination whereas the 'large
breasts additional requirement' is direct discrimination. Why not? Because CA
is not the basis on which the courts are making their decisions. It is not CA
that underpins the finding that in Patmalniece the discrimination is only
'indirect' but need to find the policy against "welfare tourists" lawful (and
the binding EC decision in Bressol, which is also best explained by the need to
find certain policies lawful).
As regards (2), plainly the answer to Lord Walker's disssenting judgment has to
be that the justification of 'protecting the public purse' is "independent of
nationality", otherwise the majority view would contravene the EC stipulation
that a justification must be based on considerations "independent of
nationality". Yet where is the CA supporting what must therefore be an integral
part of the majority view? In fact, where is there any analysis in support?
Where do the majority deal with what is plainly Lord Walker's objection -
namely, that the justification here is not 'protecting the public purse'
simpliciter but 'protecting the public purse against non-UK and non-Irish
"Union Citizens"', and that is not a justification "independent of
nationality". In other words, if the true justification were 'protecting the
public purse' in a way "independent of nationality" then that justification
would apply across-the-board "independent of nationality", in which case it
could not specifically justify a policy that only applies to non-UK and
non-Irish nationals. The majority view is bereft of an alternative analysis and
simply seeks to rest on the assertion that 'protecting the purse' is
"independent of nationality" while being politely silent on the objection that
in this context 'protecting the public purse' does not function as a
justification "independent of nationality".
But then Lord Walker himself does not spell out what kind of considerations
could ever be "independent of nationality" in this kind of context - and one
wonders if he privately thinks the EC have painted everyone into a corner by
stipulating that justifications must be "independent of nationality". In any
case the result in Patmalniece is a majority view that adopts such a notional
and unexplained yardstick of what is "independent of nationality" that the EC's
stipulation is rendered toothless.
Analytically yours, while against CA
DL
On Thursday, 3 March 2016, 17:02, david ritchie <profdritchie@xxxxxxxxx>
wrote:
Clear as mud.
I’m away to teach. I expect when I’ve had a moment to reflect I’ll have
questions, but that’s no excuse for delaying thanks.
David
On Mar 3, 2016, at 3:55 AM, (Redacted sender "Jlsperanza" for DMARC)
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
Arma virumque cano
When visiting The Metropolitan Museum of Art, the "Armi ed armature"
section, some say, is a _must_ (implicature: to go and see) -- it includes
some
nice Roman pieces, too!
I
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