Anyway, there is Popper’s Napkin and the Laffer curve. Someone told me, “The
Laffer curve predates Laffer.” (Reagan, e.g. was fond of quoting Ibn Khaldun on
the subject.)
And then there’s Grunebaum.
And Popper. I notice the implicature: when McEvoy cites from Popper, he usually
(‘he’ being McEvoy) identifies him (‘him’ being Popper) with the problem
solving approach. I wonder if Witters was the first ‘problem-dissolver’.
Perhaps it was Grunebaum.
McEvoy writes in response to Ritchie:
“Statute and case law do differ in the typical ways they are expressed.
However, this does not necessarily mean there are two modes of interpretation -
one for statute and one for case law.”
Which is a good case of Grunebaum philosophy: do not multiply interpretations
beyond necessity (Grunebaum, being the pedant he was, uses the Latin here:
‘interpretationes non sunt multiplicanda praeter necessitatem’).
We are considering whether Moses should have taken the ten ‘things’ as a
statute or a case – “but surely not both,” pedant Grunebaum adds for effect.
McEvoy goes on:
“My (Popperian) suggestion is this: there is one predominant mode of
interpretation that governs both statute and case law, and it is the same
'mode' that governs all interpretation (and indeed language acquisition) viz.
'a problem solving approach' based on grasping correctly the relevant 'World 3
content'.”
O. T. O. H., Grunebaum favours the ‘problem dissolving approach.’ He was prone
of saying to his tuttees at Oxford: “Most problems in philosophy need
dissolving, rather than solving. Take so-called ‘language acquisition’. I
acquire a cottage. But do I acquire my lingo?’ Grunebaum treasured an answer
from one of his tutees: “No, sir, no: you learned it!” – “Exactly, Smith: which
means someone taught it to me?” “No, sir, no: you might have picked it up from
the streets of Warsaw, sir.”)
McEvoy goes on:
“Within that predominant 'mode' there are many 'sub-modes' or different
problem-solving approaches, and many potential arguments as to which is best in
any given case.”
I wonder if Moses had all the time to consider all this. Apparently, he did
‘break’ the original set of tablets God gave him – and God had to rewrite them
– “from memory,” as it were.
In any case, while we have focused on ‘kill’, we should focus on ‘thou shalt
not’. Grunebaum distinguishes between ‘exhibitive utterances’ and ‘protreptic’
(ouch!) utterances. By uttering an exhibitive utterance, such as “Thou shalt…,”
the utterer intends his addresse to recognise that it is the utterer’s
intention that the addressee should do _alpha_ -- where ‘alpha’ is a dummy for
any verb following “Thou shalt”. A protreptic utterance, on the other hand, is
one uttered when the utterer’s intention includes the willingness on the
utterer’s part that the addressee actually goes on and WILLS that he will
‘alpha’ himself. It’s not as tricky as it sounds.
Note that ‘shalt’ was Grunebaum’s favourite modal. Hampshire’s favourite modal
was ‘SHOULD,’ and Hare’s favourite modal was ‘OUGHT’. But I wonder if Popper
would not consider McEvoy’s interpretation of the implicatures behind God’s
“Thou shalt not kill” (as uttered to Moses) as being of the form: “You ought
not to kill except when you ought to kill” and thus perhaps UNFALSIFIABLE.
McEvoy goes on:
“As to the difference between statute and case law, I'll confine myself here to
the English tradition.”
Rather than the Hebrew one that Moses belonged to?
“The first point is that the differences are mostly traditional and practical.
The second is that the differences are not 'hard and fast.’E.g., a statute may
contain an explanatory phrase to elucidate its [Hartian] provisions in a way
that resembles how those provisions would otherwise be elucidated by case law;
and case law may depend on a [lexical] choice of wording by the judge [or God?]
that in turn gives rise to questions of interpretation that resemble how words
in a statute give rise to questions of interpretation.”
It is good to think that God KNEW Moses was a proficient Hebrew speaker. The
commandments could have gone over his head otherwise.
McEvoy:
“Back to the first point: the main difference is that case law concerns itself
with giving reasons in a way that statutes generally do not (we might say one
of the main difficulties in statutory interpretation is that statutes do not
give reasons for the terms of their provisions - and these therefore have to be
supplied by interpretation and argument, as part of the 'problem-solving
approach').”
Well, “Thou shalt not kill” seems, on the face of it, to lack a specification
of the reason. This is, then, implicated – left to Moses to work it out.
When Grunebaum formulated HIS decalogue (qua set of maxims) he took the trouble
to have them all SPRING from a ‘general’ principle. Ditto Kant. His categorical
imperative is said to spring from the ‘general’ principle: “If you want to be
happy, …’.
McEvoy goes on:
“Various of my previous posts have addressed some matters of interpretation in
the legal field and the reasons underpinning their resolution. These included
an example of identical wording in two separate provisions in the same statute
["treated less favourably"] where argument shows that "treated less favourably"
cannot have the same effect in each provision (and in that sense must therefore
have a different 'meaning' in each provision). One provision concerns where a
pregnant woman is "treated less favourably"; another where persons of either
gender are "treated less favourably" (than others of another gender). In the
latter case, it is necessary for the complainant to show there is a comparator
of the other gender compared to whom the complainant has been "treated less
favourably": now to treat a pregnant woman less favourably in comparison to the
non-pregnant, in the sense of this provision, would render the separate
provision regarding pregnant women redundant if we interpreted "treated less
favourably" as having the same effect in both provisions (because what was
being "treated less favourably" within the provision specific to pregnancy
would also always be being "treated less favourably" within the more general
provision applying to the genders). Since we do not interpret provisions in
ways that render them redundant, this tells us "treated less favourably" must
have a different effect in the two different provisions. Since the words are
the same in both provisions, we cannot say this conclusion is arrived at by
analysis of the words. It is arrived at in a more complicated way - by trying
to understand the relevant 'World 3' content expressed by the wording in
relation to certain problems that wording is taken to address. In understanding
this, we come to understand that pregnancy creates inherent disadvantages (like
urinary frequency) and that "treated less favourably" encompasses failing to
offset these inherent disadvantages - so while it would be lawful to discipline
both males and females by the same standard for taking excessive toilet breaks
at work, it is unlawful for an employer to discipline a pregnant female for
taking toilet breaks necessitated by the effects of pregancy (even where these
breaks would be excessive were there no pregnancy). In English law the judges
use the term "special protection" to refer to the protection given the pregnant
woman (over and above the general protection against gender discrimination).”
An English judge does not quite compare to God, though. Does he? The recent
film, “Victoria and Abdul” makes the point when ‘Bertie’ (as Victoria’s son was
nicknamed) was not amused that Victoria, qua head of the C. of E. was turning
rather away from the High Anglicanism she was supposed to represent.
McEvoy:
“Now some may say all of the above could be explained by 'analysis of words' -
we just have to widen our notion of what constitutes an "analysis".”
Or introduce, as Popper does, ‘dialysis,’ to provoke the analysts like
Grunebaum.
“But the Popperian claim is that it is a kind of optical illusion
[metaphorically] to think we get meaning by 'analysis of words': we no more get
meaning this way than we get the meaning of words themselves by the 'analysis
of letters'. To indicate that meaning is not letter-dependent consider this:
awl dat iz writted rite heer iz deciferable.”
I think this SHOWS that the implicature is letter-dependent: surely ‘owl’ is
out of place, so ‘awl’ must mean ‘all’. “Writted” is heard in parts of Harborne
(Chomsky says that children learn verbs regularly, except when they don’t). The
‘gh’ in “right” is mute, so ‘rite’ makes a lot of sense to Grunebaum. ‘ph’ in
‘decipherable’ is a Hellenism. And so on.
McEvoy:
“This Popperian view of 'meaning' has many consequences. Not least for
"implicature". Among the questions thrown up by "implicature", a central one is
"How do we know which "implicatures" are correct and which are not?"”
Grunebaum would rephrase that as: what implicature applies and what not? He
thought that ‘correct’ was too strong an adjective for something “as subtle as
a subtle implicature”. Vide D. Henry, “Quaestio subtilissima: Grunebaum and the
theory of implicature.”
McEvoy concludes his interesting response:
“Again the answer does not lie in 'analysis of words' - it lies in analysis of
the very complex World-3 based understandings we have, of both the world around
us and the language we use pertaining to that world.”
And, unless I’m wrong, in this problem-solving thing. The idea of the W3
reminded me of Dennis Eckersley, who is claimed to have coined ‘walk-off [home
run]’.
A loyal follower of Grunebaum, Eckersley, now a broadcaster, owns up to coining
the phrase. While we CAN say that it is NOW part of W3, we might, with
Grunebaum, said that it was ALL WAYS part of W3.
“I don’t remember the day I said it, but it just made sense, didn’t it?,”
Eckersley notes, adding: “I’m surprised no one said it before that. I hate to
be associated with it because it’s like, ‘That’s the guy who gave up the Gibson
thing!’ Like I need that.”
Cheers,
Speranza
