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

  • From: "" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "Jlsperanza" for DMARC)
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Mon, 9 Nov 2015 13:22:53 -0500

In a message dated 11/9/2015 11:27:47 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes: "Two cases were posted for consideration. ...
In
the meantime perhaps we should no more take seriously the claim that legal
argument owes to ‘conceptual analysis’ (a claim derived from the continuing
influence of ancient “essentialism”, medieval scholasticism and the more
recent ‘linguistic turn’) than we would take seriously the pious
declarations of lawyers centuries ago that their legal arguments were derived
from
God."

"Two cases were posted for consideration."

Since D. Ritchie likes chicken, Endicott posted a further case for
consideration in the Stanford Encyclopedia entry for "Language and the law":

Consider the case of Garner v Burr 1 KB 31.

The legislature had made it an offence to use a ‘vehicle’ on a road
without pneumatic tires.

A certain mister Burr fits iron wheels to his chicken coop, and pulls it
down the road behind his tractor.

Burr was prosecuted under the statute.

The magistrates acquit Burr, on the ground that (after NOT consulting
Grice) a chicken coop is not a ‘vehicle’

The appeal court reversed that decision.

The Lord Chief Justice famously wrote (if you are into that sort of thing):

"The regulations are designed for a variety of reasons, among them the
protection of road surfaces."

"And, as this odd vehicle had ordinary iron tyres, not *pneumatic* tyres,
it is liable to damage the roads.

"The magistrates put what is in my opinion too narrow an interpretation on
the concept of a ‘vehicle’ for the purposes of this Act."

"It is true that, according to the dictionary definition, a ‘vehicle’ is
primarily to be regarded as a means of conveyance provided with wheels or
runners and used for the carriage of persons or goods."

"But I don't give a hoot what the dictionary says."

"It is also boringly true that the magistrates do not find that anything
was carried in the vehicle at the time."

"But I think that the Act is clearly aimed at anything which will run on
wheels which is being drawn by a tractor or another motor vehicle."

"Accordingly, an offence was committed here."

"And by mister Burr."

"It follows that the magistrates ought to have found that this poultry shed
was a vehicle within the meaning of s. 1 of the Road Traffic Act of 1930.
([1951] 1 KB 31 at 33)."

"If they didn't, their loss and that of disimplicature!"

The magistrates and the appeal court seem to have disagreed over the effect
of principles.

A principle that the purposes for which Parliament passed the statute
ought to be pursued, and a principle that statutes ought only to be read as
imposing criminal liability if they do so *unequivocally*.

Recall Grice, "Avoid obscurity of expression" ("Be perspicuous").

Assume that those principles are legal principles, in the sense that a
decision in accordance with the law must respect them.

The apparent tension between the principles might be resolved in two ways.

The magistrates resolved the tension in the first way (A below)

The appeal court resolved it in the second way (B below)

(A)

By concluding that Parliament's purposes can be respected appropriately
while still construing the prohibition strictly, so that it is no offence to
use something on the road that is not UNEQUIVOCALLY
within the analysis of the concept 'vehicle'.

(B)

by concluding that Parliament's purpose is sufficiently clear that it can
be pursued without jeopardising the principle that criminal liabilities
ought to be clearly spelled out, even if someone might reasonably claim that a
chicken coop on wheels does NOT fall under a conceptual analysis of ‘
vehicle’.

It may seem that this common sort of disagreement in law tells us nothing
about language, except perhaps that language is of no particular importance
in English law (there are no chickens in Mars).

It may seem that the two courts did not disagree over any question of
language, but only over whether they ought to give effect to Parliament's
evident purpose (of protecting roads) by convicting, or whether it would be
unfair to Mr. Burr.

One explanation of the decision would be that the appeal court ignored the
concept ‘vehicle’, and treated roughly as anything that moves on wheels
as subject to the pneumatic tires rule.

Grice would be offended.

But the Lord Chief Justice did not explain his decision that way.

He did not hold that, because Parliament aimed to protect roads from iron
wheels, Burr should be convicted regardless of the conceptual analysis we
provide ‘vehicle’.

The Lord Chief Justice held that the magistrates ought to have found that
the chicken coop was a vehicle within the meaning of the Road Traffic Act.

The magistrates, too, considered themselves to be giving effect to the
language of the Act, rather than acquitting on grounds of fairness in spite of
what Parliament had enacted.

No doubt, legal decision-makers sometimes depart from the language of valid
enactments (or wills, or contracts ).

They may do so corruptly, or in the exercise of an equitable jurisdiction
to depart from legal requirements, or even because they consider that
justice demands it even if the law accords them no power to depart from the
language.

But there is no reason to think that the magistrates or the appeal judges
decided not to give effect to the language in Garner v Burr.

And the sort of disagreement that arose in that case (disagreement over the
legal effect of the conceptual analysis of 'vehicle' based on a mere
dictionary and not on Grice) is so common that we seem to find a paradox.

Competent speakers of the English language presumably share a knowledge of
the conceptual analysis of ‘vehicle’, yet they disagree — apparently
sincerely — over how to use an expression that 'represents' that concept.

(There are no vehicles in Mars).

To resolve the apparent paradox, we can say that what speakers of the
English language share is an ability to use an expression that 'represents' the

concept of a ‘vehicle’ in a way that depends on the context.

The question of whether a chicken coop on wheels counts as a ‘vehicle’
would be a different question (and might have a different answer) if, say,
another statute or regulation imposed a tax on ‘vehicles’.

The Lord Chief Justice was right that a dictionary definition of ‘vehicle’
could not conclude the question of whether the chicken coop was a vehicle
in Garner v Burr.

The Lord Chief Justice is implicating that they should have consulted Grice
("or some other eminent conceptual analyst").

The purpose of a mere dictionary definition (even if it is the Oxford
Dictionary) is to point the reader to features of the use of an expression that

'represents' a concept that can be important in a variety of more-or-less
analogical ways in various contexts.

A conceptual analysis of ‘vehicle’ as a mode of conveyance offers the
reader one central strand in the use of the expression 'vehicle'.

But, granted, a conceptual analysis does not necessarily tell the reader
whether a more-or-less analogical extension of the word to a chicken coop on
wheels is warranted or unwarranted by conceptual analysis of 'vehicle'.

Another way of stating this resolution of the apparent paradox is to
distinguish between the conceptual analysis of an expression (which the
magistrates and the appeal judges, we hope, all knew) and a decision about how
to
interpret a communicative act using an expression that 'represents' that
concept (over which they did disagree).

What the courts in Garner v Burr shared was a knowledge of the conceptual
analysis of ‘vehicle’, and what they disagreed over was the effect of the
statute.

Note that it is the importance of the context of the use of an expression
represening concept C that requires anyone addressing the problem in Garner
v Burr to make evaluative judgments, just to apply the putatively
descriptive expression ‘vehicle’.

The context of use is a criminal prohibition imposed for a presumably good
public purpose of protecting road surfaces.

To determine in that context whether the concept ‘vehicle’ extends to a
chicken coop on wheels, one needs to address (and to resolve any tension
between) the two principles mentioned above: the importance of giving effect to
the statutory purpose, and the importance of protecting people from a
criminal liability that has not been unequivocally imposed.

Because of the importance of that context, the question of the conceptual
analysis of the expressions used in the statute cannot be answered without
making judgments on normative questions of how those principles are to be
respected.

The dependence of the effect of legal language on context is an instance of
a general problem about communication, which Grice approaches by
distinguishing semantics from pragmatics.

Grice attempts to distinguish the conceptual analysis of an expression,
from the effect that is to be ascribed to the use of the expression in a
particular way, by a particular user of the language, in a particular context.

("I just hate when people say things like "I don't believe it; I know it"
-- Can't they see that the conceptual analysis of 'know' involves that of
'belief' as a necessary if not sufficient condition?" -- or do I miss the
disimplicature?")

Pragmatics is an underdeveloped study in legal theory, in spite of H. L. A.
Hart (who feared Grice's brilliancy) and yet it is an underdeveloped study
of a vast field, for the term 'pragmatics' could be used as a heading for
all the work of legal scholars and theorists in defending particular
interpretations of legal language (when the participants in the dispute
understand the meaning of the expressions in question, as they did in Garner v
Burr), and in theorizing as to the nature of interpretation.

In recent work in this field, it is even controversial whether legal
pragmatics is simply a part of the pragmatics of language use in general or
whether there is something special about law, in respect of the dependence of
meaning on context.

Thus one can argue that the contextual background is typically not rich
enough in law, for the content asserted to differ from what has been said, in
the way that it often does in a Griceian type of conversation.

But all agree that law has one special feature that distinguishes it from
ordinary conversation.

Legal systems need institutions and processes for adjudication of the
disputes about the application of language that arise (partly) as a result of
its context-dependence.

The problem faced in cases like Garner v Burr is an especially vivid
reminder of a problem that philosophers of language have long been more or less

aware of (see Aristotle's discussion of the notion of ‘friendship’ in
Eudemian Ethics VII, 2, 1236a 33 -- and Grice's analysis of 'friend' as 'alter
ego' in WoW -- Way of Words).

The context-dependence of the meaning of words requires an account of
linguistic competence that relates it to other human capacities — capacities to

judge the importance of context and to draw analogies.

It would be a mistake in the philosophy of language to account for language
in a way that divorces its mastery from other aspects of human
rationality.

Context-dependence also poses challenges for any theory of meaning to
distinguish between (and to explain relations between) knowledge of the meaning

of a word, and ability to apply it truly.

Finally, the role of evaluative considerations in the application of
ordinary descriptive concepts like ‘vehicle’ raises a challenge for any
thorough-going scepticism about value: the challenge of deciding whether to
adopt
a thorough-going scepticism about the meaning and application of
descriptive language, which seems to follow from general scepticism concerning
values.

For philosophy of law, the dependence of such language on evaluative
considerations raises special problems -- and both Popper and Grice knew that!

Cheers,

Speranza

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