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

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Sat, 7 Nov 2015 09:04:58 +0000 (UTC)

Here is another line of attack (or way of putting forwardthe problem-solving
critique), on understanding the law in terms of ‘conceptualanalysis’/CA. 
Consider two cases: (1) A person faces trial for a public order offence
wherethe definition of the offence includes an element that concerns the likely
impactof their behaviour on bystanders (e.g. whether a bystander would be
threatened,alarmed etc.). Two of the bystandersto that alleged public order
offence have important engagements abroad on thedate of the person’s trial and
do not want to attend and the person applies forwitness 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.). (2) A person is
convicted of a criminal offence. As thelegal authorities stand, a person
convicted of a criminal offence cannevertheless both bring and defend a civil
action arising out of the samesubject matter. These authorities are so embedded
that Parliament has onlyrecently sought to amend the law so that a person’s
being convicted reversesthe burden of proof in related civil proceedings: but
this ‘reverse-burden’ amendmentdoes not prevent the following kind of
inconsistency arising – a person is convictedof ‘careless driving’ in a
criminal court, which finds it ‘sure’ they were‘careless’ as charged, but a
civil court finds it ‘more probable than not’ thatthe person was not ‘careless’
in relation to the same incident. Againstthis background, the person convicted
of the criminal offence seeks to sue forassault the police officers involved in
their arrest and detention. At theirtrial the person had claimed they were
assaulted by police in a way thatrendered their police ‘interviews’
inadmissible, but the trial judge rejectedthese claims. So success in a civil
action against the police for assault wouldproduce a result prima
facieinconsistent with the findings of the trial judge. In each case, what
should happen? Specifically, should thewitness orders be granted in (1) and
should the person be allowed to proceed intheir action against the police in
(2)? Now ask: are there any further facts that might change thecomplexion of
the ‘problem-situation’ without changing the above problem inconceptual terms?
Might such facts prove important and even decisive in deciding‘what should
happen’? If they proved important, and even decisive, this wouldbe a strong
argument against CA and in favour of a problem-solving approach interms of
understanding the law (at least in these cases). In a further post, we might
examine how further facts put avery distinct complexion on the conceptual bones
of the above cases and howthis argues against CA as the explanation for the
decisions reached. But Ithink it useful to first raise the issue as a question
because, by seeing howCA is adequate to answer the question, we might
appreciate how CA is inadequateas an explanation. Still something of this flesh
is indicated in the postscriptbelow. DnlLdn P.S. As a starter clue (spoiler
alert), the case at (2)arose after the conviction of the ‘Birmingham Six’ and
became one of thelongest sets of judgments in English legal history – going all
the way to theSupreme Court. The case at (2) was decided as Hunter v Chief
Constable of West MidlandsPolice, and it was in this case that Lord Denning
said the words, thatwere much quoted when he died, about an “appalling vista”. 
 In my view, few discerning readers of Hunter, except those too in thrall to CA
already, couldthink that the various judges in that case were engaging in CA or
anything likeit. It is all too evident, and becomes even more so when we know
some furtherfacts like how the trial judge of the ‘Birmingham Six’ was on the
way tobecoming a Law Lord, that the explanation for the decisions in actual
caseslike (1) and (2) depends on the specifics of the problem at stake and not
thegenerality of the concepts involved. Indeed, the specifics in question may
takeus far beyond the general account of the problem as set out at (1) and (2). 
P.P.S. Maybe I should apologise to the list for my impudencein daring to say
anything more about the law and legal cases having been recentlyjudged “not
competent” as a lawyer by Walter. Though we might all bow down beforeWalter’s
judgment in these matters (on which Walter presumably judges himselfcompetent
to judge), it might just be, despite my incompetence, that everythingabove is
correct.







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