A few other points where conceptual analysis seems relevant, or where
philosophicalese meets legalese.
The use of ‘system.’ In the Roberts case, this noun occurs as applied to
‘legal’: ‘the legal system’:
“96. The English LEGAL SYSTEM has developed statutes of limitation, and
procedural rules of court are elaborate. But, for a long time, there was very
little direct interaction between them. In relation to causes of action founded
on tort or simple contract, statutes of limitation refer, as the Limitation Act
still does, to the date on which a “CAUSE OF ACTION” accrues.”
I bring this to our attention, since it was L. Helm who was recently referring
to the relevance of ‘system,’ and I found the use of ‘legal system’ cute. Of
course, if Toulmin is right, and legal reasoning (or in fact, all reasoning, to
him) is quite UNlike a system like Whitehead’s and Russell’s “Principia
Mathematica,” or Grunebaum’s System for that matter (he adored that noun –
‘system’, not ‘matter’), we have to be cautious.
I note that while McEvoy was referring to Lord Collins’s meditation on a
‘conceptual’ “analysis” of “cause of action” being ‘sterile’, when we have two
classical definitions to hand, there is also discussion of the CONCEPT of
‘capacity,’ which I found of interest.
Thus, in 101, we read:
“I shall come back to some wider issues arising on the [convoluted and thus not
free from difficulty, when it comes to interpretation and analysis] §35 and the
Yorkshire Regional Health Authority case. First, I want to look more closely at
the CONCEPT OF CAPACITY which is the focus of the convoluted §35(7) and CPR
r17.4(4). In this context "capacity" is “being used in the SENSE of legal
competence or status to bring or defend a claim. It is a competence that one
may have in one's own right or on behalf of another person.” The same MEANING
of capacity must apply in CPR r17.4(4). This means that the alteration in
capacity which is referred to is an alteration from a representative capacity,
or personal capacity, to another representative capacity, or (in the case of a
representative claim) to a personal capacity.” That is how it was put by Arden
LJ in Haq v Singh 1 WLR 1594 , paras 18-19, and that is the RIGHT MEANING in
the context. The best example of a “representative” capacity is that of an
executor or administrator of a deceased person, both offices being included in
the compendious expression "personal representative".”
I find of interest the use of ‘mean’ (in this and similar contexts) and
‘meaning’ – which of course was the obsession of Grunebaum, when he attempted
to replace Peirce’s krypto-technical philosophicalese by ordinary language!
Note that the discussion is about the ‘right’ meaning – which may relate to
McEvoy’s earlier points that all this further involves ‘evaluation.’ (Cfr.
“That’s the WRONG meaning!”).
A third point of interest is the qualification of section 35 as being
‘convoluted,’ as I expand in the quote above that refers to the section. This
convolutedness seems to involve an issue of ‘interpretation’. If x is
convoluted – which is the adjective used – it is understandable that a lot of
hermeneutic work may be needed, and drop in some not necessarily sterile
analysis into the bargain. This seems to be a place where philosophicalese and
legalese mean: a matter of ‘interpreation,’ on which Kantotle wrote a lot (vide
Aristotle, “Peri hermeneias” – on which Grunebaum lectured at Oxford).
The Stanford Encyclopedia of Philosophy divides legal reasoning in two entries:
one dealing with coherence, and the other with precedent and analogy. I notice
a few references to ‘analogical’ reasoning, shall we qualify it, as being
somewhat tricky. How do we decide if a piece of analogical reasoning is not
valid? Thus in 112, we read:
“112. I differ from Arden LJ (with whom Patten J agreed) as to “special
circumstances.” I also think that she was too ready to accept the ANALOGY
between a true “derivative” claim and a claim by an equitable assignee, or a
sole beneficiary under a bare trust. A “derivative” claim by a residuary
beneficiary interested in an unadministered estate is not, with respect,
indistinguishable (as suggested in para 32 of Arden LJ's judgment) but faces a
more formidable obstacle than a claim by an equitable assignee or a beneficiary
under a bare trust.”
While McEvoy was referring to Baroness Hale and her use of ‘conceptual
difficulty,’ I was fascinated by the use of this double-negative expression in
Scots law (originally, but used, echoing the Scots context, to transfer to
English law), “not free from difficulty”. I read that to be, alla Baroness
Hale, “not free from conceptual difficulty.” Thus in 80:
“How Scots law would see the procedural issue is, as Lord Rodger says, NOT FREE
FROM DIFFICULTY. But there are some indications as to how it deals with the
question which is of interest in this case, which is whether a proceeding can
be raised without joining the trustees at the outset.”
It is later in 87 that the broadening of this ‘absence of freedom from
difficulty’ is found:
“I am reluctant to get drawn into a discussion of a tangential point of Scots
law [and how it might apply to English law] which was not argued and is not
free from difficulty.”
Another point that may have to do with the structure of legal reasoning (and
reasoning in general) we face in 115:
115. That CONCLUSION makes it unnecessary to reach a final CONCLUSION on the
question whether the court has power to grant the application for permission to
amend to introduce the derivative claim. However, I wish briefly to address
that question because it is of potential importance in the future and because I
WOULD NOT GO AS FAR AS LORD COLLINS.
Note the interesting final caveat: “I would not go as far as Lord Collins.” The
implicature may be difficult to formalise, but it would seem to involve the
claim that Lord Collins is using the same set of premises (from the legal
system and beyond) and that this set is found NOT to yield the conclusion that
Lord Collins claims it to yield.
Which should not surprise us since, as Toulmin and Hart (yes, Hart) agree:
there’s defeasibility in all reasoning, and in legal reasoning in particular.
“Defeasible” is not used in the document, but ‘defeat’ which relates, is -- the
verb, “to defeat”:
69. I would not rule out the possibility that there may be circumstances in
which justice would require that joinder of the administrator be dispensed
with. But the mere fact that there were "special circumstances" justifying an
action by the beneficiary, or the fact that non-joinder would defeat a
limitation defence, would not be sufficient.
74. ... to give Mark Roberts permission to amend the present proceedings to add
a derivative claim (if special circumstances existed) and thereby defeat a
limitation defence.
The grammar of ‘defeat’ is a complex one, and 69 and 74 (and other occasions
where ‘defeat’ is used) is may involve some consideration to turn that ‘defeat’
into Hart’s defeasibility.
Etc.
Cheers,
Speranza
