Some commentary on Hale then first, based on McEvoy's exegesis.
In a message dated 12/17/2015 8:03:35 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
"To understand [Baroness Hale of Richmond] properly it helps to understand
that some judges had said 'ting' that might have suggested otherwise."
This was incidentally one of my points re the "conceptually distinct", and
for that matter, "The king of France is not bald" (Strawson's example). I
think Strawson called it the 'ditto' theory. Most people do NOT 'ditto', but
if you do say, "it is true that it is raining" you are dittoing someone
who said so. With the King of France is slightly different.
McEvoy invites us to read closely Baroness Hale of Richmond's utterance and
infer the implicatures.
"Now read closely ... Well, the large print giveth and the small print
taketh away. To my mind there is a clear tension, perhaps even contradiction,
between the claim (a) "T]here is no logical or necessary connection
between seriousness and probability" and (b) "seriousness generally means
they
are inherently unlikely"."
I like the idea that the Baroness Hale of Richmond contradicts herself.
McEvoy:
"For that "generally" may be thought to reflect some "logical or necessary
connection" rather than be a product of mere happenstance."
I was quoting in my previous Hume, for whom 'causation', notably (vide
Hart/Honoré, Causation in the law), does NOT involve any logical or necessary
connection; and it may well be that Baroness Hale is having Hume's Treatise
of Human Nature in mind.
McEvoy:
"How do we reconcile (a) and (b): perhaps by saying (b) uses "inherently
unlikely" to mean 'unlikely absent sufficient evidence'? Her vital point is
her insistence that the standard remains the same: now if what constitutes
'sufficient evidence' varies according the seriousness of the allegation,
can we not say the standard [of what is sufficient] varies? Perhaps; though
clearly Hale is against this kind of talk and she wants to say the standard
is the same even if what is 'sufficient' (presumably according to the
standard) varies."
Perhaps she should have read or re-read some Mill, for isn't there a
famous law about variation that Mill first introduced into the philosophy of
inductive reasoning?
McEvoy goes on:
"What does Donal say?* Donal says we should beware trying to understand
this in terms of CA or some kind of nailed-down analysis of any sort: Hale's
way of talking is because she feels talk of different or varying standards
is a recipe for confusion in practical terms - it is not because
analytically we could not talk in terms of varying standards, for example a
varying
standard 'on the balance of probabilities', but because nothing useful is
gained and there is much to be lost. In practical terms her words may well be
wise ones then even if they give rise to some analytical dissatisfaction."
I see. Or give rise to tension and logical inconsistency, even
contradiction!
----- INTERLUDE.
McEvoy: "But what does Walter say? Walter is free to pop up and opine that
he is a much more competent judge in legal matters than I, and this is, I
understand, quite likely using some forms of Bayesist calculus - certainly
more likely than an apology for defamatory remarks."
I HOPE Walter assumes Bayesianism!
--- END OF INTERLUDE.
I would see the baroness's clear point if there were ONE standard, but
since there are TWO, what would be the inherent problem of a 'heightened"
standard of proof?
She seems to be implicating that such a heightened standard of proof
(keyword: heightened standard of proof) is a hybrid, or, to use McEvoy's other
sub-thread, not clearly conceptually distinct from ... _stuff_?
McEvoy:
"On a side-note: when I previously said the courts have set their face
against further analysis of what constitutes being 'sure', it follows that they
have set their face even harder against any attempt to introduce Bayesism
as an account for what constitutes being 'sure'. Nor is it is right, or
even plausible, that Bayesism provides the underlying system by which
probabilities or certainties are arrived at (unwittingly) in the law -
Bayesism,
for all its plausabilities, does not provide the underlying system for
science and a fortiori does not provide it for law."
This must be some Popperian exegesis! But I should get more implicatures
from Bayes before I follow the point!
For Grice, incidentally, the problem was not so much certainty (or
'certainties', as McEvoy pluralises it) but 'uncertainty' (His Philosophical
Annual Lecture for the British Academy, on "Uncertainty" -- a response to
Hart's
essay on "Certainty" in _Mind_.).
Cheers,
Speranza
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