[lit-ideas] Can a lawyer be a conceptual analyst?

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  • Date: Sun, 1 Nov 2015 18:50:13 -0500

While we await a Part II:

Existence and non-existence are complicated matters. In Salem, some
thoughts witches existed, others did not. (This is an implicature of 'some').
Some even further believed that 'witches' existed, but not that they were real
witches, who could do what a real witch would do on Hallowe'en, say.

The non-existence of conceptual analysis in English law may well be
England's loss!

When Hart (that's H. L. A. Hart, not his brother) became engaged in
conceptual analysis, some philosophers said, "He's just a lawyer". Others said,

"He's a just lawyer". When he went to Harvard Law School, Harvardites said,
"He's just a philosopher" (Only one, Grice, said, "He is a just
philosopher" but his meaning wasn't clear -- nor was his disimplicature)

Some some preliminary drafty thoughts on Part I.

In a message dated 11/1/2015 3:27:41 P.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx under a different heading, writes:

"Let’s try to understand how “conceptual analysis”, a la philosophers,
plays no role in legal reasoning or in arriving at legal knowledge – plays no
more role in law than it plays in physics."

There seem to be two claims here:

i. that conceptual analysis plays no role in legal reasoning or in
arriving at legal knowledge

and

ii. that conceptual analysis plays no more a role in law than it plays in
physics.

The implicature of (ii), combined with a reading of (i) seems to be

iii. that conceptual analysis plays no role in physics.

I point this because surely, "Conceptual analysis plays no more a role in
law than it plays in physics" may also be interpreted as

"Conceptual analysis does not play ANY role."

(But Sarah Bernhardt would disagree: 'some roles which are SILENT _are_
roles, you know; and then there's "The dinner's served" type of role that I
allways avoided."

-- and in any case, why bring in physics? Surely Mario Bunge said that
conceptual analysis has a lot to say about physics.

But it IS important to bring Physics, for, as Poincare noticed, much of it
is merely conceptual definitions, and it's only the INTERESTING (for a
philosopher) concepts in physics that the philosopher is ready to provide a
conceptual analysis for how the physicist even comes to postulate it! (what
Grice calls hypostasis, rather than hypothesis).

McEvoy goes on:

"We may come back to some of the assumptions that might give plausibility
to the view that “conceptual analysis” plays a role – even a central or
vital one – in legal reasoning. One such assumption is that law, unlike
physics, is fundamentally a _language-based system_, and so legal knowledge is
bound up with the analysis of language."

Well, philosophers like Grice use 'language' BROADLY. Thus, his famous
"Logic and Conversation" starts with the assumption that there's Strawson's
English -- with 'if', 'or', and 'and' -- and the ideal logic of the logicians
-- with "->", "v" and "&".

I don't see a difference between "->", "v" and "&" and Einstein's "e
=mc2": algebra.

In fact, Grice's pragmatic tradition stems from Morris's and others' idea
of a 'unified science'. This was a myth of the Vienna Circle incidentally,
and Schlick believed in it! ("Unified science: science, like virtue, is
ENTIRE").

McEvoy goes on:

"And thus bound up with “conceptual analysis”, as the meaning of language
is inextricably linked with the meaning of the concepts in which language
is expressed."

Well, surely Einstein had a meaning in mind when he wrote on that
blackboard,

e = mc2.

More importantly, he hoped his students would catch the implicature (Some
did -- "Some didn't," Geary adds, expanding on the implicature).

The language of physics is merely abbreviatory but Russellian in
character. There are theoretical concepts and observational concepts. Ramsey
even
thought that all theoretical concepts could be REDUCED to observational
concepts -- in what he pretentiously called "The Ramsey Sentence".

McEvoy goes on:

"On close examination, this plausible line of reasoning has next to no
validity - for law is no more, or less, a ‘language-based system’ than is
physics; the point of law and of physics (and any other bodies of knowledge) is
that they attempt to solve certain problems; and it is a myth that “
conceptual analysis” [‘CA’] plays any vital role in these attempts."

This seems a rather biased view of stuff: as Grice's view is biased when
he thinks that conceptual analysis is critical.

For Grice KNEW that he was being 'fashionable' when opposing his views to
who he regarded as the 'enfant terrible' of Oxford philosophy, as he called
him, Freddie Ayer -- "a mere Vienna positivist from London."

McEvoy goes on:

"What can happen is that we can falsely credit CA with playing a role,
even a vital role – in fact we can do this for physics as well as law (Poincare
’s conventionalism treats “e = mc2” as a kind of conceptual definition
etc.)."

And he was a genius! Of course if it is a conceptual DEFINITION is
different from talking "CA" or conceptual analysis. But 'to define' and 'to
analyse' ARE related. A convention need not be a definition. I think Quine
poses
this as the second dogma of empiricism, but I never cared much about it, as
I should, seeing that Grice took sides to defend what Quine thought was the
FIRST dogma of empiricism: the analytic-synthetic distinction.

Conventionalism is a serious philosophy of science, that in fact, as McEvoy
notes by quoting from the French (Poincare), predates all that Kuhn,
Feyerabend, Lakatos, and Popper, would later philosophise about this
enterprise
-- vide Chalmers, "What is this thing called science". In many ways,
conventionalism is more sophisticated than inductivism that Popper attacked,
and
I trust many scientists think that scientific conventions (only they would
call them 'protocols') are "IMPORTANT" -- of course, they have hardly an
idea, many of them, that the ONLY conceptual analysis of 'convention' was due
to D. K. Lewis, under Quine, for his PhD dissertation at Oxford -- and
quite a complicated analysis it is too!).

McEvoy goes on:

"It is the plausibility of this ‘false crediting’ that underpins and
sustains the view that CA plays a vital role in the development of human
knowledge."

"Vital" is metaphorical, but Grice does mention that without new problems
philosophy would be dead!

Sarah Bernhardt noted that "most vital roles, in tragedy in any case, end
up _dead_. Paradoxical, no?". She uttered this in her charming foreign
accent (Everybody knew that Bernhardt was a furriner, but few knew where
exactly
she 'hailed from').

McEvoy goes on:

"In posts over the last few years I have written at some length about a
case, Pilcher v Rawlins, to illustrate a range of points. One of these points
is that the right way to understand the legal reasoning is not by
analysing concepts but by understanding ‘what is at stake’ in practical terms
and
then seeking the best outcome given ‘what is at stake’ (with the purported
‘legal reasoning’ sometimes a pale reflection of ‘what is at stake’)."

Well, it can palely reflect via "rational reconstruction": legal
reasoning, if symbolised the better, would be a what is conceptually behind
what is
at stake. And there are other uses of conceptual analysis, too. It is
critical for a fashionable philosopher (back in post-war Oxford, like Grice
was), who wanted to reduce philosophy to a matter of dealing with 'the way of
words'. It can have political uses too, as when we define what we mean by,
say, ... [insert political concept here].

McEvoy notes:

"Pilcher may be untypical in that ‘what is at stake’ is barely touched on
in the judgment (as explained in my posts) but it is entirely typical in
that ‘what is at stake’ provides the best basis for understanding the
result. The question of ‘what is at stake’ is equivalent to the question “What
is the problem-situation?” and we are looking at legal decisions and their
attendant reasoning as attempts to solve problems. We may say the same of
legal cases time and time again."

Perhaps 'stake' is metaphorical, too. In any case, loads of lawyers have
taken H. L. A. Hart's conceptual analysis seriously and more importantly
they have found it useful!

A lawyer is not being a philosopher when he is playing the role of a laywer
(or performing the activities of a lawyer).

It is a PHILOSOPHER who engages in conceptual analysis when he is presented
with a piece of legal argument, and is questioned as to the centrality of
this or that concept that the argument relies on.

McEvoy goes on:

"In posts regarding English discrimination law, it was explained that the
same wording “[treated] less favourably” has a very different effect in
cases of gender discrimination generally (where it means ‘treated worse than
others of a different gender’) than it does in the special case of pregnancy
(where it means ‘treated worse than is required to offset the inherent
disadvantages of the pregnancy’). This difference in effect is not arrived at
by CA but by understanding important differences between the two
problem-situations - such as pregnancy involving inherent disadvantages in
ways that
(in the eyes of the law) gender generally does not."

Well, CA's most infamous case is

"A bachelor is an unmarried man."

Which looks like a definition, say, of a pregnant female. A female is
pregnant if and only if...

(Recall the case of the male alleged to be pregnant, as picked up by the
press -- was this analytically contradictory?)

McEvoy goes on:

"We may say the same of R v Howe, for example, where the English House of
Lords/Supreme Court decided that duress is not a defence to murder. This
conclusion is not best explained by way of analysing the concepts of “duress”
and of “murder” and of “defence” and showing that, analytically, these
concepts cannot be combined so that duress could be a defence to murder –
the fact is that it is conceivable and conceptually possible that duress
could be a defence to murder."

And next he'll say that it's conceivable and conceptually possible that a
male can (or "may" as he prefers) get pregnant!

For this, I would recommend Kripke, Seas of Language (only it was written
by Dummett). For rigid designation plays a role in conceptual analysis, and
we don't call a male pregnant (now), although it is not logically
impossible that, while a bachelor can NEVER be a married male, a male COULD or
MIGHT (as McEvoy might prefer) get pregnant (I think Kripke used this example,
"If I were pregnant, I would still be _me_.")

McEvoy goes on:

"The Howe result is because ‘what is at stake’ is not merely whether
genuine cases should be allowed to avail themselves of a defence of duress (if
this were the only issue then surely they should) but that, if duress were
a defence, it could and would be disingenuously raised, and, if raised,
might be very hard to rebut."

Or refudiate, as Palin might prefer.

"Howe is not premised on being dismissive of scenarios where an innocent
person acts under duress – for example, where at gunpoint a person is
coerced to load a weapon that is then used in murder (where this would make
them
an accomplice and guilty of murder if they acted voluntarily but
commonsense would say such a person is not a murderer if they load a gun under
threat
of their own murder). Still less is Howe premised on being dismissive of
such scenarios on grounds of “conceptual analysis” or some other figment."

Well, the keyword here seems to be MARS and Thought Experiments.
Apparently, the first philosopher who brought thought experiments back in
fashion
was Grice when he talked about the senses of the Martians (vide Coady, "Grice
and the sense of the Martians --" (they have four eyes you know)).

McEvoy:

"Howe takes genuine cases of murder by duress seriously but is premised on
the view that we have adequate safety-valves to deal with the genuine
cases (so the person forced at gunpoint to load the murder weapon would not be
prosecuted because it is ‘not in the public interest’) and, given the
adequacy of these safety-valves, the right policy to is deny duress is a
defence to murder so as not to give this as a potential escape-route for the
most
dangerous terrorists and criminals. In effect, the rationale of the
decision is that we can afford to allow duress as a defence to crimes less
than
murder but in the case of murder the price would be too high given we have
adequate safety-valves to protect genuine cases. This précis reflects ‘what
is at stake’ in deciding whether or not duress should be allowed as a
defence to murder – though of course this involves some understanding of the
terms “murder”, “duress” and “defence”, it does not involve “conceptual
analysis” as philosophers understand it or arguments derived from “conceptual
analysis”".

Well, as Grice said, there's conceptual analysis and conceptual analysis.
As it happens, he was interested in the PARADOX of analysis. Why saying
that a bachelor is an unmarried man INFORM? This is paradoxical! So,
conceptual analysis has a 'multifacetic' (if I may be metaphorical) dynamic.
One
first step is the provision of necessary and sufficient conditions for concept
C, but there are other steps. How to provide a USE to concept C, and how
to see how C plays a role in valid reasoning, for example. On top, we need
an analysis, alla Gentzen's natural deduction, on what constitutes a 'valid'
reasoning.

McEvoy goes on:

"This précis, of ‘what is at stake’ as the actual rationale for Howe, may
be disputed but the parameters of such disputes do not give a foothold for
saying the rationale lies in CA. Disputes as to the actual rationale may
arise, inter alia, because ‘legal reasons’ as set out in judgments may not
be comprehensive or may be a pale reflection of ‘what is at stake’, just
as these public pronouncements may be a pale reflection of the discussion
behind closed doors."

This may be one big difference between law and philosophy: doors. Did
Plato's Academy have doors? I know Aristotle's Lyceaeum did, but then you had
to pay a fee to get INTO the room through the door which was then closed
(Theophrastus recalls how Aristotle, having forgotten the key, had the
students locked for two weeks on bread and water -- "Life of Aristotle", 3.2).

McEvoy:

"There is also the potential and sometimes significant actual gap between
the W3.3 of the legal problem-situation and the W3.2 of the judicial grasp
of this problem-situation and the W3.1 of the judicial expression of this
grasp in issued judgments."

Not to mention the W1 fact that the judge may have a heart attack -- "or
two," as Geary adds -- implicating that not all them are _fatal fatal_ (vide
conceptual analysis of 'fatal').

Cheers,

Speranza

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