[lit-ideas] Re: Hands Across The Bay
- From: "Donal McEvoy" <dmarc-noreply@xxxxxxxxxxxxx> (Redacted sender "donalmcevoyuk" for DMARC)
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Wed, 22 Nov 2017 09:18:30 +0000 (UTC)
With thanks for the provocative commentary.>
Well, actually, those were just some starter questions - I hadn't got to the
commentary.
The questions weren't intended as criticism of Foster's commentary, though it
could be regarded as a shortcoming of his commentary that it provides no answer
to them.
Equally, these questions might be asked of the reasoning of the judges. It
might also be asked why the minority of the Supreme Court did not canvas this
alternative line of reasoning in challenging the approach of the majority - for
it would give an interpretation, of the Limitation Act and related provisions,
that would permit the amendment sought (and they need such an interpretation
because, constitutionally, UK legislation is more supreme than the UK Supreme
Court).
The answer may be that, as a matter of substantive judgment, the claim for the
solicitors' negligence regarding the estate (in a 'derivative action') is not
the same as the claim for the solicitors' negligence regarding beneficiaries
(in the original action). But again - how to explain or justify this?
Otoh, it looks like it is the same behaviour by the solicitors that is being
complained of in each of the two claims - and, in that way, they may look like
the same claim. Otoh, the capacity in which the claims are made differs, and so
does the unit [estate, beneficiary] in respect of which damages are sought -
and, in that way, they may look like different claims. This might seem to give
the court an option in how it defined "claim" for the purposes of 19(5) - and
this option would surely be important to discuss and analyse?
But then look at the discussion, in Roberts, of what constitutes a "cause of
action": does it amount to Lord Collins saying "We judges can't exactly say
what constitutes a "cause of action", so as to distinguish it from another
"cause of action", but we know it when we see it."
As it happens the criticism of Foster, that I'm working on, focuses on his
concluding paragraph, and other aspects where his commentary throws more
darkness than light: but in respect of the questions asked we might note, to be
fair to Foster, that some of the possible shortcomings in his commentary may
reflect shortcomings in the reasoning and explanation of the judges themselves.
What may be emerging is that sometimes 'legal reasoning' may be more puzzling
on close examination than it is when superficially understood. [The converse
may also sometimes be the case.]
DL
From: "dmarc-noreply@xxxxxxxxxxxxx" <dmarc-noreply@xxxxxxxxxxxxx>
To: lit-ideas@xxxxxxxxxxxxx
Sent: Wednesday, 22 November 2017, 2:19
Subject: [lit-ideas] Re: Hands Across The Bay
McEvoy’s interesting and provocativequestion addressed to Foster’s commentary
(slightly paraphrased) goes:
“What is wrong with this line of reasoning?” -- Or invalid, perhaps? (Andno, we
cannot ‘observe’ validity, alas! Even if we see the marks on paper inour copy
of Whitehead’s and Russell’s “Principia Mathematica” – but Hilbert,the
formalist, might disagree!) McEvoy (slightly paraphrased here) rephrasesthe
question to Foster: “Why is it that the claim, in the derivative action, isNOT,
substantially, the same claim, at least for the purposes of 19.5(3), as the
claim in the original non-derivative action?” A further rephrase of
thisimportant question to what Foster seems just to presuppose (for
whateverreason):
McEvoy: “[W]hy can we not, instead, [validly] conclude that there *IS* aneed
“for the administrator to be joined to Mark Roberts’s original
non-derivativeclaim, brought in his ‘personal’ capacity, in order for that
claim tocontinue”?” McEvoy seems to imagine Foster’s answer– Hardy’s
answer, for Grunebaum – “Obvious!,” and challenges it (I paraphraseslightly):
“If we say that it [is] _somehow_ pretty *obvious* why this line ofreasoning
fails, how is *that* any kind of _good_ or satisfying or
satisfactoryexplanation?” I agree. As Hardy was well aware,what might be
obvious to him, was not obvious to his addressee – which hasGrunebaum reminding
us that it all depends on the ‘obviousness of the obvious’.In any case, as with
‘longcoming,’ the logical grammar of ‘obvious’ iscomplicated as far as
implicatures go (never too far, I fear). For, if in themood [or mode, as
Grunebaum would prefer] of linguistic botany, we would have,inter alii, and
even with Descartes: i. p is obviously TRUE. ii.
It is obviously true that p. iii. p is obvious. iv.
It is obvious that p. And a few other variants (thisrequires, as I say, some
linguistic botany). Foster should perhaps focus onwhat ‘obviously follows.’
[cfr. ‘sequitur’ and ‘non-sequitur’], or on what is ‘obviouslyvalid.’
McEvoy: “And how can [one line ofreasoning] be “obvious” [or more obviously
valid than its alternative]? Manyapparently *less* ‘obvious’ arguments have
been successful before the courts.” Well, we shouldn’t be THATpragmatist,
either, now, should we? Success, philosophically, seems to have littleto do
with validity! So we may want to over-qualify that to implicate that, beforethe
courts, many arguments, which were allegedly not THAT obviously valid,ended up
being valid, in an NON-OBVIOUS sort of way. Or something. I would reconsider
for emphasisGrunebaum’s stress on the ‘obviousness of the obvious’ (his
critique to G. E.Moore’s, “This is a hand,” as being ‘obvious’ – “A defence of
common sense”) asbeing Cartesian (if not Kantotelian) in nature (And it is
interesting (to me,anyway) that Grunebaum’s WoW includes a rather seminal essay
on Descartes onclear and distinct perception, which may relate to the –isms
McEvoy wasreferring to above – “Cartesianism”! – In that essay, Grunebaum
repeats thisidea that ‘obvious’ seems to be on the ‘subjective’ side, even if
Descartes isnever clear about it – For Descartes, Grunebaum claims, it is never
obvious if,when philosophising on certainty, we talking of certainty of a
subjective kind (“Iam certain that p.”) or a perhaps stronger objective kind
(“It is certain thatp.”) McEvoy concludes by generalising thequestion as to
what he sees as a shortcoming in Foster’s commentary: “Moregenerally, we may
ask: on what basis is it determined whether the claim in thederivative action
is *the same* as “the claim” in the original *non*-derivativeaction? And we can
add a specific variant: on what basis is this *determined* forthe purposes of
19.5 (3)?” There has been some emphasis oflate on ‘rhetorical questions,’
and if we take McEvoy’s question above as one,who said that a rhetorical
question NEVER allows an answer? If the rhetoricalquestion implicates the
answer, “ON NO BASIS WHATSOEVER.” And in its specificvariant, “ON NO BASIS
WHATSOEVER” can we speak of a ‘determination’. Perhaps itwas scenarios like
this that had H. L. H. Hart claiming that ‘defeasibility’ iswhat we may
basically need for a practical and theoretical understanding ofwhat he taught
when he taught from the chair of Jurisprudence at Grunebaum’svarsity. Or not.
With thanks for the provocativecommentary. Cheers, Speranza
REFERENCES
Baker, G. B. “Defesasibility and meaning,” in Hacker/Raz, “H. L. A.
Hart.”Oxford.
Adams, G. Therebut for the grace of God: Roberts v Gill & Co, Trusts &
Trustees, vol.17. In its first case concerning trusts andtrustees the Supreme
Court had to confront, but in the end did not conclusivelydecide, central
issues concerning the nature of the equitable jurisdiction,which were thrown
into sharp relief by the law of limitation and the equitableprinciples which
allow derivative actions (See generally Lewin on Trusts (18th edn) paragraphs
43-01ff and Underhill and Hayton: Law of Trusts and Trustees (18th edn)art 68).
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