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

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Mon, 9 Nov 2015 19:50:16 +0000 (UTC)


First, I don't see how JLS's disinquisition on "vehicle" addresses the points
in my post - instead it just carries on regardless. The disinquisition, for
example, does not give a plausible analysis in terms of CA that explains the
result in Gatting.
Nor do I agree with the convolutions deployed in analysing what "vehicle" means
or might mean, including focus on the idea of "unequivocal". No terms are
"unequivocal" in purely conceptual terms, and purely conceptual terms are
inadequate to resolve their 'equivocality'. The courts simply bypass CA for a
problem-solving approach.



The problem-solving approach is reflected in the judge's comments which are
based on looking at the mischief the law aims to address - damage to the roads.
A chicken coop without pneumatic tyres, and a 101 other things that might be
trailed on a car, might do damage as much as a car without pneumatic tyres - so
it is considered a vehicle for the purpose of the relevant rule. If the rule
were about having registration plates on "vehicles" then a chicken coop might
not be a "vehicle" for the purposes of that rule.
Consider whether a temporary workman's hut is a "building"? If "building" is
being considered in a law against burglary ['Unlawful entry of a building...'
being some of its elements] then the courts may deem it a "building" - as they
might also deem a boat [e.g. house boat]. If "building" is being considered as
part of a taxation law based on the number of buildings on land, then the court
might deem it not a "building" within the purposes of that act. The courts do
not get hung up on CA or use it to solve problems. They look at the problem in
practical terms - which they express by talking of the purpose of the relevant
law or the mischief it tackles.
There is a further much longer set of points that might be made as to how this
works in practice but they will be of no comfort to JLS because they do not
involve the pretence that how this works depends on CA.

DL


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