[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 17:21:49 -0500

In a message dated 11/9/2015 11:27:47 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx about 1A and 1B -- "two cases ... posted for

1A (slightly paraphrased)

"A person faces trial for a public order offence where the definition of
the offence includes an element that concerns the likely impact of their
behaviour on bystanders (e.g. whether a bystander would be threatened, alarmed
etc.). Two of the bystanders to that alleged public order offence have
important engagements abroad on the date of the person’s trial and do not want
to attend and the person applies for witness orders for those bystanders to
attend and give evidence for the defence (on the basis that the bystanders
may say they were not threatened, alarmed etc.)."


"An applicant has a discrimination case arising out of an alleged
clandestine difference in the rate of pay between themselves and a comparator.
employers say the comparator got some extra pay for working extra hours but
maintain there was no difference in respective rates of pay for hours
actually worked. Accounts prepared by the employer’s bookkeeper show both
applicant and comparator being paid at the same rate for hours actually
These sums are free of mathematical error. The same accounts also detail the
payments for the comparator’s supposed ‘extra hours’: these sums contain ‘
errors’, in that the comparator is paid amount x for these extra hours
when he should have been paid amount y given the rate of pay. Not only is x
incorrect as the sum due for the extra hours but x is exactly the extra
amount that the comparator would receive if they were working no extra hours
were being paid at a higher percentage rate than the applicant for their
standard hours. So the applicant’s case in respect of the accounts is that
they have been drawn up to disguise the fact the comparator is being paid at
a higher rate for hours actually worked – disguised by paying the
difference (between the higher and lower rate) in the form of a sum for ‘extra
’ (that have not actually been worked). The employers don’t propose to
call the bookkeeper as a witness. The applicant seeks a witness order to call
the bookkeeper with the intention of questioning them on the ‘errors’ to
show the accounts contain deliberate fabrications (unless the bookkeeper
admits the deliberate fabrications, this may involve having the bookkeeper
declared ‘hostile’ so the applicant can effectively ‘cross-examine’ their
own witness)."

What does 1A and 1B have in common?

They involve a common question.


"Should the witness order be granted?"

Why does McEvoy ask the question?


"[I am] asking this question in the context of evaluating whether it is
better to understand the law as an exercise in ‘conceptual analysis’ or in ‘

Details besides -- including any possible Conceptual Analysis besides --,
the problem-solving map is different.

The metaphor McEvoy is using is regarding Conceptual Analysis as the bones
(conceptual "bare bones") and Problem-Solving as the 'flesh and muscle".


"[T]he *form* [emphasis Speranza's] of the problem-situation in 1A and 1B
differ when we get beyond the conceptual bare bones to the specifics."

i.e. to "the flesh and muscle".

"[T]hese specifics (qua ‘problem-situation’) may play a decisive part in
what rule is adopted. So even though the rule adopted may apply to both 1A
and 1B, it may very well be that whatever rule is adopted is affected by
whether the problem presents itself in the form of 1A or 1B."

There is an element of necessity in Conceptual Analysis (which is after all
the search for *necessary* and sufficient conditions? But do legal
concepts display these, seeing that they are defeasible -- vide G. P. Baker on
'criterial semantics').


"This kind of contingency cannot easily be accounted for in terms of CA
though it can easily enough be explained in terms of a problem-solving

Perhaps another way of putting it is that while the conceptual bare bones
are good in THEORY, the problem-solving flesh and muscle are good in

On which I would comment that without the bones, forget about flesh --
never mind muscle!


"So, when considering the following, bear in mind that there is a constant
invitation to defenders of ‘law as CA’ to jump in at any point and
explain “Well, from this point on we can of course arrive at the answer by CA
may be shown by…..” My claim is that this kind of explanation cannot
plausibly be given and that trying to recast the whole story in terms of CA is

post hoc pseudo-explanation.’"

McEvoy is wedded (if that's the metaphor) to a view of conceptual analysis
as providing necessary and sufficient conditions, and to seeing this as
'stipulatory' and 'definitional', and thus anti-Popperian in terms of the
advancement of anything.

It might be argued that the conceptual analyst is trying to provide a
"Rational Reconstruction" of what we are talking about.


"1A and 1B, two seemingly disparate cases, become related because the rule
adopted in one of them affects the other. The order and hierarchy in which
they are presented before the courts may have a significant effect on which
rule is adopted at a high level within the legal system (for CA no more
explains legal development than it explains the ‘order of play’ in the ‘War
of the Roses’ and its effect on outcomes). As it happens, 1A was presented
first and gives us a rule that it is still showing its teeth some 20 years
later e.g. in the jurisdiction of Hong Kong it was applied to dismiss an
appeal as recently as 2010 [HKSAR v Au Kwok Kuen and others]. A 1A-type case
has led a certain rule becoming embedded. It might all have been very
different – but CA cannot explain this as a ‘problem-solving’ approach can."

Well, one could distinguish between

(a) SYNCRHONIC conceptual analysis


(b) DIACHRONC conceptual analysis

(The distinction is De Saussure's). Thus, if one analyses the concept of
'motion', one can just stick with Aristotle, or proceed onwards. One has to
be careful in that the concept may change its labels!

So, while a synchronic conceptual analysis would regard SEQUENCING as
irrelevant, a diachronic conceptual analysis wouldn't. Thus, a conceptual
analysis of what Einstein is trying to do may get clarification once we have
already provided a conceptual analysis of where Newton went wrong.


"Before looking further at 1A, we might note how different the law might
have been had 1B presented itself first (say, on an appeal against refusal of
a witness order in a 1B situation)."

A similar scenario might be that phenomenon beloved by Thomas Kuhn, the
sociologist of science: The Copernican Revolution and its aftermath. Imagine
if Einstein had come before Euclid?!


"For had 1B become the subject of a decision of the Court of Appeal (or
even Supreme Court), it may well have been that the rule adopted would have
been that the witness order should be granted on the following basis: though
the bookkeeper may prove ‘hostile’ or unfavourable to the applicant’s
case in terms of what they say absent ‘cross-examination’, their evidence
subject to cross-examination may be discredited in a way that supports the
applicant’s case (perhaps even decisively). In other words, in a 1B-type case
the court might well have viewed it as manifestly in the interests of
justice that an applicant be allowed to compel an unfavourable or hostile
in order to discredit their evidence in a way that lends support to the
applicant’s case. Allowing a ‘hostile’ bookkeeper to be cross-examined might
advance the applicant’s case significantly so that instead of the court
finding "There were ‘errors’ but the bookkeeper was not called and we don’t
know what explanation they might have given" the court would find "There
were ‘errors’ and the bookkeeper was called but could give no credible
explanation to counter the suggestion the ‘errors’ were part of deliberate
manipulation of the accounts." There is very different flavour to the 1B case
than to 1A when we flesh out the facts. ... 1B ‘presents’ as a case where a
witness order is necessary to stop the other side ‘hiding their witness’,
by not calling them, when that witness would fall apart on
cross-examination. In terms of the interests of justice, the desirability of
the witness
order is reinforced where the witness is (or may be) party to fraud or other
discreditable conduct, including what would be a fraud on the court or
perverting the course of justice. By contrast, as shown below, 1A ‘presents’
as a case where allowing a witness order would allow the applicant to make
an even greater nuisance of themselves than they have already and to use
the process of the court to pester or disturb by calling someone as a witness
when this could not realistically help their case, and also allow a witness
order to be granted for a possibly “ulterior purpose”. In other words, in
1A there is no genuine ‘interest of justice’ served by calling the
witness and calling the witness borders on ‘abuse of process’. It is 1A not 1B
that made it to the higher courts. In 1A the court did not view it as
manifestly in the interests of justice that the applicant be allowed to call
unfavourable witness: R v Marylebone Magistrates’ Court, ex parte Gatting
and Emburey (1990) 154 J.P. 54. The application for witness orders was
denied. The court ruled that a party cannot obtain a witness order where the
witness is not likely to be favourable to that party in their evidence. Given
the rule in Gatting is sufficiently broad to apply in cases of both type 1A
and 1B, we might note its central weakness as a rule: it overlooks cases,
like 1B, where a hostile or unfavourable witness may nevertheless be
discredited in a way that supports the case to which they are hostile or
unfavourable, and it overlooks other cases where the hostile witness might
that case in part. It is very possible this is because in its ‘
characterisation of the problem’, the court in Gatting did not consider cases
like 1B
but simply had in mind cases of the 1A type. It is also possible this narrow
characterisation was not fully thought out because the court was fixated on
the possible ‘abuse of process’ in cases of the 1A type. Gatting and
Emburey may not be well-known names in America and are largely (and perhaps
best) forgotten here. They were cricketers who played for England."

Well, this should interest a Griceian. After all, his obituary in "THE
TIMES" ran, "Professional philosopher and amateur cricketer". I always felt
offended by that. It should have read: "Amateur cricketer and professional
philosopher". But trust THE TIMES to be boring.

McEvoy goes on:

"They also went on one of the ‘rebel tours’ of apartheid South Africa. In
advance of this, some protesters mounted a pitch invasion to protest Gatting
’s and Emburey’s proposed ‘rebel tour’ and found themselves charged with
public order offences. The protesters’ trial ended up scheduled for the
period during which the ‘rebel tour’ took place: if the witness orders were
granted, the protesters would sabotage Gatting’s and Emburey’s
participation in the ‘rebel tour’. Howzat. The problem for the court was that,
it noted its “suspicion in this case that the process of this court is
being abused,” the application for the witness orders fell short of a
clear-enough ‘abuse of process’ (I was in court for this hearing and the
certainly grilled the lawyers as regards ‘abuse of process’; but,
fundamentally, the applicants were not responsible for the scheduling of their
and there was insufficient proof that the witness orders were sought not
for “the simple and proper purpose of obtaining evidence, but for a
different and ulterior purpose”.) Unable to find ‘abuse of process’, the court
sought another way to refuse the application for the witness orders – by
adding to the established condition that a witness has relevant evidence by
of a further condition that the evidence be likely helpful or supportive to
the party seeking the witness order. The court then found it safe to
conclude that neither Gatting nor Emburey were likely to be helpful. In the
immediate term, problem solved. And the Gatting rule can be defended as in
interests of justice’ for cases of the 1A type – where there is no
realistic prospect that the witness’ evidence would help the case of the party
seeking the order. The problem is that the Gatting rule also applies to cases
of type 1B, and here the rule could work very much against the ‘the
interests of justice’. This creates an ongoing ‘problem-situation’ in W3.3
terms that may yet give rise to an instance of a 1B type case that leads to an
appeal for reversal or amendment of the Gatting rule. ‘The interests of
justice’ in both kinds of case might be better served by an ‘amended Gatting
rule’ viz. that a witness order should not be granted where there is
insufficient likelihood that the evidence will assist the party seeking the
but an order may be granted in respect of a hostile or unfavourable witness
where the discrediting of their evidence may assist the case of the party
seeking the order or where their evidence, though ‘hostile’ in part, may
have sufficient parts that assist the case of the party seeking the order.
In outlining and explaining above, we have followed a ‘problem-solving’
approach – one that allows that there may be different levels and aspects of a
problem and that the proper ‘characterisation of the problem’ is itself a
central problem."

And where 'chracterisation' is not that different from 'analysis' (although
admittedly, I'm dubious at this point if we are dissecting the bare bones
or touching the flesh that make up the muscles!)


"My suggestion is that this kind of account cannot plausibly be replaced by
one in terms of ‘conceptual analysis’. But let’s see."

If Endicott's example was any good, it shows that conceptual analysis is
NOT ENOUGH. As Lewis said, 'clarity is not enough'. Even Grice conceded that.
As Endicott also showed, there is an essential VALUE-ORIENTATION at play
in legal reasoning, and it is this type of 'form' that the conceptual
analyst, when it comes to legal reasoning, should look for. This would amount
provide the 'conceptual bones' -- in terms of premise and conclusion -- of
the PRACTICAL (not theoretical) reasoning, in terms of DESIRABILITY. The
concepts involved here are terribly complex.

(As an anecdote, Grice wrote on that: "Desirability, Probability, and Mood
Operators". As years passed, he noted that he preferred to speak of
'modes', not "moods" -- and, to boot, the essay was misquoted by Levinson in
"Pragmatics" as "Defeasibility, probability, and mood operators"! --. The
conceptual bare bones of practical reasoning Grice touched in his John Locke
lectures at Oxford on aspects of reason and reasoning, but alas few lawyers

McEvoy ends his interesting post (and it's still up to us to provide the
conceptual bones of the desirability-based legal reasoning involved in 1A and
1B -- perhaps in terms of some of the 'fiat' logic developed by A. J. P.
Kenny in "Practical inferences", later developed by J. D. Atlas):

"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."

Well, God can be taken seriously. In ethics, 'ideal observer' approaches
are sometimes endorsed by Grice. Only he prefers to talk 'pirot'. The
philosopher becomes a god in that he sees how his creatures, his pirots,

But admittedly, there is a difference between God and god*.

As Quinton writes, "There is the idea of God as a rational intelligence
setting his creation to work in accordance with a unitary scheme of
intelligible laws."

Grice was fascinated by this and would literally "play 'God'", i.e. in his
words: 'use 'God' as an explanatory device'. Notably in meta-ethics, a form
of the theory of the ideal observer. Grice preferred to call it the
'genitorial programme'.

Early enough, when devising his "Grand Plan" for the 1967 William James
lectures at Harvard Grice, wrote, on the plane from Oxford to Harvard -- the
notes survive in the Grice collection at Bancroft, Berkeley --:

"use, if you can, God as an explanatory device".

As one reads at http://forums.catholic.com/showthread.php?t=254333&page=2

"To use God as an explanatory device for such things is completely
illegitimate - it tells one nothing, because it allows anything & everything."

But that's not so true -- for there is god and there is what Kenny, whom I
recently mentioned, called "The god of the philosophers" -- a different
animal altogether!

I take McEvoy's point that there may be a dosis of essentialism in some
forms of conceptual analysis. But there are philosophers who have developed
varieties of conceptual analyses that are free from this. G. P. Baker (yes,
Hacker's once collaborator) and his criterial semantics -- based on Hart's
defeasibility -- may be one such (vide Baker in the Hart festschrift,
"Defeasibility and meaning").

Admittedly, 'conceptual analysis' can be used vaguely. And when a
philosopher calls himself 'analytic' that does not mean he is engaged in
analytic. I for example was always offended that people called QUINE an
analytic philosopher when his claim to fame was to refute the
analytic-synthetic distinction! (But then he did it _analytically_).



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