McEvoy notes: “Much of law (some might say much of science also) is about
spelling out what (at least in hindsight) may appear obvious.”
This is interesting. It should be contrasted with “what may appear
_tautological_” and with “what may appear obvious because it _is_ obvious.” The
obvious reference here is to Grunebaum, reminiscing:
In a lecture, G. H. Hardy announced that a proposition, at which point one of
his addressees demurred and said that it was not obvious. Hardy then halted the
lecture, paced outside the lecture room for a quarter of an hour, returned, and
said “It is obvious.”
McEvoy goes on: “But it is important not to overlook the so-called obvious. So
please forgive this amplification of something that may seem obvious once
stated but which may be important to understanding the majority view in
Roberts. It is this: by adopting a far-reaching rule (that amendment of a
pre-existing action to switch capacities is NEVER allowable outside the
limitation period for beginning an action in a representative capacity - even
where there are "special circumstances"), the majority make clear that legal
advisors must tell clients that if there is any possibility that at some point
their case needs to take the form of a ‘derivative action,’ they need to bring
this action within the limitation period (rather than think they might amend
their pre-existing action in their personal capacity outside the limitation
period). Now nearly everyone should be able to adapt themselves to this rule
without any injustice, which is therefore preferable on grounds of efficiency
[cost-benefit] to a less far-reaching rule that opened the door to plaintiffs
with "special circumstances" seeking to switch capacities in a pre-existing
action outside the limitation period. If everyone can adapt themselves to this
rule without injustice, we need not worry much about the potential injustice
where people fail to adapt to it. Such people, together perhaps with their
legal advisors, have brought the "injustice" on themselves. The fact that this
might do some injustice to the plaintiff before them, who of course acted
before this far-reaching rule was established, is not something that will weigh
much with the majority (as against the prospective efficacy of the rule
established). In Roberts the Law Lords were particularly unlikely to lose any
sleep over the effect of their ruling on the plaintiff: looked at closely,
there is something iff-y about the whole scenario leading to the action (e.g.
why no evidence from the other beneficiaries of the estate?). Iffy-ness aside,
the plaintiff made two fundamental mistakes in conducting their litigation and
have brought their problems on themselves - first, they began an action in
their personal capacity, for negligence by the estate's legal advisors, when
they should have known case law shows the legal advisors have a duty of care to
the estate but not to its beneficiaries; second, there was a clear window of
opportunity for the plaintiff to switch capacities, within the limitation
period, after they knew the action in their personal capacity was doomed - but
(for reasons not really explained) they didn't do this. It is clear enough my
points above are based on looking at the problems in very practical terms - and
not on analysing concepts etc. This, I suggest, reflects how the courts
actually look at legal problems (despite the make-believe of some legal
philosophers).”
In “Grunebaum, The Oxonian Philosopher,” I was wondering a few questions, which
may be summed up as:
i. What the Roberts case SAYS about legal reasoning in
general.
ii. Why philosophers are right in saying that legal reasoning
is not different from other sorts of reasoning, or rather, why it still makes
sense to look for the general ‘schemata’ of reasoning that will apply to legal
and non-legal cases.
iii. More importantly, perhaps, what started McEvoy’s
formulation in the first place (re: the “than” staying at home, etc.) in terms
of W3. In these comments above, by referring to this or that ‘rule,’ grounded
on social practices, and a rule which was adopted at this or that time, it all
seems a bit removed from W3 seen here as a “Platonic realm.”
Mind, Grunebaum loved a platonic realm. He gave the example of ‘circle.’ There
are no sublunary circles – this may refer to McEvoy’s reference to ‘science’
above, provided we consider mathematics a science --, only imperfect figures we
‘call’ or _deem_ circles. Yet, we may allow for this Platonic idea of a
‘circle,’ as something which the sublunary figures tend to resemble, or more
importantly, as the criterion by which we call an imperfect sublunary ‘circle,’
roughly, a circle.
Grunebaum was also interested, since McEvoy is referring to INjustice, to the
moral vs. the legal usages of ‘justice’ (surely ‘just’ has only ONE sense). But
still, we had Socrates versus Thrasymachus in Plato’s Republic arguing for
hours as to whether so-called the ‘legal’ side to justice was or was not prior
to the ‘moral’ side to justice. For the record, I append here, a few references
to legal reasoning that may pertain to (i) and (ii) above.
Cheers,
Speranza
Alexander, L., ‘The Banality of Legal Reasoning’, Notre Dame Law Review 73.
Alexy, R., A Theory of Legal Argumentation, Clarendon Press, Oxford. Becker,
L., ‘Analogy in Legal Reasoning’, Ethics 83. Brewer, S., ‘Exemplary Reasoning:
Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy’,
Harvard Law Review 109. Bix, B., Law, Language, and Legal Determinacy,
Clarendon Press, Oxford. Burton, S., An Introduction to Law and Legal
Reasoning, 2nd ed., Boston: Little Brown. Dickson, J., ‘Interpretation and
Coherence in Legal Reasoning’ in Stanford Encyclopedia of Philosophy. Grice, H.
P. On the legal and the moral (Socrates and Thrasymachus) In “Philosophical
Eschatology”, Way of Words. Grice, H. P. On the legal and the moral. In
“Prejudices and predilections. Grice, H. P. Aspects of reason. The John Locke
Lectures. Golding, M., Legal Reasoning, Peterborough, Ontario: Broadview. Hart,
H.L.A., ‘Positivism and the Separation of Law and Morals’, Harvard Law Review,
71. Hart, H.L.A., The Concept of Law, 2nd edn., with a postscript edited by
P.A. Bulloch & J. Raz, Clarendon Press, Oxford. Kelsen, H., The Pure Theory of
Law, 2nd edn. trans. M. Knight, University of California Press, Berkeley, Ca.
Levy, E.H., An Introduction to Legal Reasoning, Chicago: University of Chicago
Press. Marmor, A. (ed.), Law and Interpretation, Clarendon Press, Oxford.
MacCallum, G.C., ‘Legislative Intent’ in R.S. Summers (ed.), Essays in Legal
Philosophy, Blackwell, Oxford. MacCormick, D. N., Legal Reasoning and Legal
Theory, Clarendon Press, Oxford. MacCormick, D. N. ‘Legal Reasoning and
Interpretation’ in E. Craig (ed.), Routledge Encyclopedia of Philosophy,
London: Routledge Peczenik, A., On Law and Reason, Kluwer, Dordrecht. Raz, J.,
‘Reasoning With Rules’, Current Legal Problems, Oxford University Press,
Oxford, 54. Sartorius, R., ‘The Justification of the Judicial Decision’,
Ethics, 78. Sherwin, E., ‘A Defence of Analogical Reasoning in Law’, University
of Chicago Law Review 66. Stone, J., Legal System and Lawyers' Reasonings,
London: Stevens. Weinreb, L., Legal Reason: The Use of Analogy in Legal
Argument, Cambridge University Press, Cambridge.
