McEvoy: “[T]he comments of Lord Collins about "sterile" analysis may be taken
as rebuke to conceptual analysis.”
O. T. O. H., they may be taken as a reference to a novel by John Nichols, “The
sterile cuckoo.” This was made into a major (well, major is perhaps hyperbolic)
film with Wendell Burton. This raises the question as to *where* Lord Collins
saw the film (allegedly cut), since it was released in the UK as “Pookie” and
there is no mention in the film of the phrase, “the sterile cuckoo.” The phrase
is however referenced in the novel, as per a poem that Pookie writes about
herself. So Lord Collins may be implicating that he read the novel directly?
McEvoy goes on: “i.e. Lord Collins is rejecting, as unhelpful and unnecessary,
the view that we need a conceptual analysis of what constitutes a "cause of
action".”
which seems to pose the question as to what COUNTS as a conceptual analysis.
“Cause” is one of the most difficult items in the Graeco-Roman vocabulary to
conceptualise (cfr. Cicero, “causa”, and “aetiologia”). Hume [or Home, if you
prefer] found ‘cause’ so difficult to conceptualise that he deemed it
nonsensical – or the concept of a ‘necessary causal connexion’ (Grunebaum made
fun of this: “Decapitation is the cause of Charles I’s death.”) “Action” does
not fare much better (vide Grunebaum, “Actions and Events”). A conceptual
analysis of ‘cause of action’ may run along the following lines:
C is a cause of action A iff C is both a necessary and a sufficient condition
for the occurrence of A.
(But cfr. Kantotle on the idea of the ‘four’ “causes,” and Honoré and Hart on
“Causation in the law.”)
McEvoy: “We can thus add this to a long list of anti-CA judicial wisdom -
including the rejection of "conceptualism" by Lord Wilberforce, giving judgment
for a unanimous House of Lords in Barclays Bank v Quistclose Investments - otoh
the current head of the Supreme Court, Baroness Hale, perhaps because she has
not sufficiently divested herself of bad aspects of her academic training, has
a worrying tendency to reach for the word "conceptual" (as in "conceptually
difficult").”
Well, Baroness Hale’s ‘academic training’ is not strictly Oxonian, where
‘conceptual analysis’ is the alleged _rule_, but Cambridge, rather (Girton, if
you must). (It may do to get more details as to her tutor was, and what figures
influenced her while at Girton).
Baroness Hale’s concept of the ‘conceptually difficult’ may be Wittgensteinian
in nature (seeing that Witters, too, is Cambridge-associated). One may see a
‘difficulty’ in what Witters saw _as_ a ‘problem’ (Only Baroness Hale would
perhaps not go as far as to see what Witters saw as a ‘problem’ as a
‘pseudo-problem.’)
But seeing things like Honoré/Hart, “Causation in the law” (a very Oxonian
thing), etc., it can be argued that while Cambridge posed the pseudo-problems
(ripe with this or that ‘conceptual difficulty’), Oxford went on and dissolved
them by way of ‘conceptual analysis,’ of words, that is.
Etc.
Cheers,
Speranza
REFERENCES
Hart, H. L. A. and A. M. Honoré, “Causation in the law.”
