[lit-ideas] Re: Grice v Grice
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Tue, 15 Dec 2015 12:52:25 +0000 (UTC)
The UK criminal standard of proof is described as "beyond reasonable
doubt" in the old manuals ("old" does not mean Ciceronian).
That standard remains, and the words commonly used, though the Judicial
Studies Board guidance is that juries might be assisted by being told that to
convict they must be persuaded "so that you are sure".>
These are two ways of expressing the same standard.
Now ask: why are judges of the English Supreme Court, also of the Privy Council
for the Commonwealth, reluctant to accept there are more than two standards - a
civil and a criminal? Why not multiply standards beyond this?
Now ask: why have the courts set their face against further 'analysis' of what
it is 'to be sure'?
The answers to both are primarily practical and to do with how multiplying
standards and further analysis would, in each case, be a recipe for confusion -
of exactly the sort we find philosophical works teeming with. The answers are
not due to CA but to the courts aiming only at what works to address problems
in practical terms [i.e. a problem-solving approach].
What Baroness Hale might have said is that no standard contains the criteria
for its own application (or something to that effect): but that kind of
observation is too philosophical for most judicial taste. Nevertheless, that
observation goes to root of why CA cannot solve any problems here because CA
cannot provide criteria for the correct application of a standard. In fact,
there are not any 'criteria' here in the sense of a 'criterion philosophy', and
in whatever weaker sense we may speak of 'criteria' here we must be clear that
these 'criteria' are never arrived by CA but by acts of judgment in the light
of a (more or less) critical discussion [i.e. a problem-solving approach].
DL
Other related posts:
