So below some commentary on what McEvoy calls the 'final part' -- there's
Part I, a middle part, and the Final Part -- I, II, and III, let's numerate
them.
In a message dated 11/2/2015 3:24:30 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
"As a final exhibit consider the Supreme Court decision in Tomlinson. The
case arises out of whether a local authority have complied with their duty
to house someone who is ‘homeless’. The ‘homeless’ person sought to show
there was a breach of their human rights but this depended on whether their
rights as a homeless person were “civil rights” within Article 6 of the
European Convention on Human Rights [‘ECHR’]. The interesting thing is that
the very same issue had arisen before the Supreme Court about ten years
previously but in that case they left open whether or not such rights were “
civil rights” within Article 6 and decided the case by saying that, even if
they were “civil rights”, there was no breach because judicial review
provided an adequate remedy to comply with human rights law under the ECHR. In
Tomlinson the Supreme Court decided such rights are not “civil rights”
within Article 6 and so human rights law does not apply at all."
The use of scare quotes by McEvoy above -- "the 'homeless' person" -- seems
ripe for conceptual analysis, since it triggers some implicatures:
i. The 'homeless' person ain't homeless, you know!
ii. The 'homeless' person called himself homeless, but he wasn't really
homeless.
etc. This may start with a conceptual analysis all
iii. A house is not a home.
iv. It's a cat that turns a house into a home.
and so on. I.e. a conceptual analysis of what counts as 'homeless' -- never
mind 'civil' in 'civil right'.
McEvoy:
"What then had changed between these two Supreme Court cases? Whatever it
was, it had nothing to do with “conceptual analysis”. The
problem-situation, as perceived by the Supreme Court, had changed. A few
things may indicate
the problem-situation and what had changed. The ECHR is adjudicated on by
the European Court of Human Rights at Strasbourg [the ‘Strasbourg Court’]
and judgments of the Strasbourg Court are binding on the English Supreme
Court. Though obliged to follow Strasbourg, the Supreme Court have made clear
they do not see their function as taking a lead on human rights issues or
using such issues to carve out add-ons to the legal framework that go
further than Strasbourg would go. Ten years before Tomlinson, the Strasbourg
Court had decided several cases where rights against government bodies had
been recognised as “civil rights” attracting human rights protection and it
was possible that Strasbourg would develop the notion of “civil rights” in
ways that made clear that a homeless person’s rights were “civil rights”.
But this did not happen."
As a matter of contingency. Whereas conceptual analysis seeks for NECESSARY
and sufficient conditions of this and that concept and can hardly depend
on contingency.
The jobs of Philosopher and Lawyer thus once again go different ways: the
lawyer into contingencies, the philosopher into necessities! The Philosopher
CAN preface his words with a caveat: "Mind, what I will provide to you as
being a NECESSARY condition is necessary as I see it NOW". We know this
after Kant made the mistake of not providing a caveat being in thrall to
Newtonian physics and not even considering the future necessity of an Einstein!
McEvoy:
"By the time of Tomlinson it looked like those Strasbourg cases were
exceptional cases or were cases where the right in question had attained a
sufficiently quantifiable form to be “civil rights”. In other words, the
Supreme
Court had proceeded cautiously ten years before to avoid a potential
conflict with on-going developments at Strasbourg but by the time of Tomlinson
the Supreme Court felt confident enough, given lack of on-going developments
at Strasbourg, to hold that a homeless person’s application for housing
was not a right in a sufficiently quantifiable form (because it depends on
discretionary and conditional assessment) to constitute a “civil right”
attracting human rights protection. It would be philosopher’s make-believe to
suggest that this change was a result of a change of “conceptual analysis”
or that somehow the “conceptual analysis” of “civil right” that could be
made ten years before Tomlinson was different to the “conceptual analysis”
that could be made by the time of Tomlinson."
Well, as I noted, a conceptual analysis provides NECESSARY conditions which
are deemed necessary at the time the analysis is provided, not 'per
aeternum'. It is to the Philosopher's best knowledge that a provisional
conceptual analysis is given. And the history of the philosophy of law JUST
touching
on the issue of what constitutes a 'right' -- human or civil or what have
you -- shows that the analysis of this concept -- up to 'rights as trumps'
alla Dworkin -- professor of jurisprudence at Oxford -- HAS varied!
McEvoy concludes his Part III of a 'non-existence of conceptual analysis in
English law', or rather, "The Non-Existence of "Conceptual Analysis of
English Law"" -- he is quoting on a previous post:
"This is reinforced by understanding that Tomlinson (like the issues of
whether duress be a defence to murder or disclosure of privileged documents
be compelled to assist the defence in a criminal trial) is very much a case
where the issue is not “conceptual” but whether ‘the game is worth the
candle’. Just as the adequacy of safety-valves underpins the decision in Howe,
the decision in Tomlinson is underpinned by the perceived adequacy of
Judicial Review. In the view of the Supreme Court, treating applications for
government benefits as falling within “human rights” would greatly add to
the legal expense of administering those benefits without offering much by
way of improvement on Judicial Review – hence ‘the game is not worth the
candle’ and the decision is to take such applications outside of “human rights
” by finding they are not “civil rights” within Article 6. It is fantasy
to suggest that the decision in Tomlinson can properly be accounted for in
terms of “conceptual analysis”. It is based on finding the right legal
solution given the ‘problem-situation’."
Well, C. S. Nino has provided different conceptual analyses of this! He
wrote his PhD under Hart! Nino's conceptual analysis of a 'human right' has a
LONG history and provoke a few challenges! I think his background was as a
lawyer, till he met Hart! Another branch were lawyers became philosophers
(Bulygin) is deontic logic -- lawyers working on topics like rights found
themselves wishing to provide a conceptual, sometimes axiomatic, framework,
that would allow them to provide 'solutions' to the 'problems' they were
facing. And most of them succeeded!
But it all might boil down to how the Philosopher sees himself as doing and
what the Lawyer sees himself as doing.
Someone said that there is no "Philosophy of X", and so there would be no
philosophy of law. Philosophy, like virtue, is entire. Conceptual analysis
is a general methodology, like presupposition-analysis was a general
methodology for Collingwood (vide his essay on Philosophical Method). It can
apply
to legal matters or legal concepts, which are recognisedly defeasible. And
it may yield conditions that the Philosopher terms 'necessary' (as in
Leibniz's 'necessity' and 'sufficiency' of reasons). This contrasts with the
natural habitat of the Lawyer which is full of contingencies: with new
problems being created before a minimal solution that would appeace the
Philosopher has been found!
This is one of the reasons why Witters, who was not a lawyer, gave up
philosophy altogether! But then he had given up Engineering altogether back in
Manchester (Lord Russell always called him "the Autrian engineer"), so, as
the Australians would say, so there!
Cheers, and thanks to McEvoy for taking the trouble to provide such
abundant examples -- which were a pleasure to read in his easy-flowing prose --
about how irrelevant he finds conceptual analysis!
Speranza
------------------------------------------------------------------
To change your Lit-Ideas settings (subscribe/unsub, vacation on/off,
digest on/off), visit www.andreas.com/faq-lit-ideas.html
