McEvoy: “But as well as proposing an analysis or view of para 101 untainted by
conceptual analysis, we may consider the problems that conceptual analysis must
face in terms of its implausibility. Some of these go to the very 'concept' of
a concept.” Well, to do this, it may do to revise para 101:
Walker: “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…. [But f]irst, I want to look more closely at the CONCEPT OF CAPACITY.”
Is Lord Walker using ‘look’ figuratively? Can we “look” at a concept? Surely we
are not referring to Witters’s and Grunebaum’s favourite use of ‘look’ as in
“look like” (Grunebaum’s example: That horse looks like a horse; which should
not surprise Witters, since it IS a horse.”)
Note that Lord Walker uses “the concept of capacity.” Not “the concept of a
capacity.” He possibly is having Ryle and Hart in mind (Ryle, “The concept of
mind,” Hart, “The concept of law”). Walker’s use of the comparative “more”
(“look more closely”) seems to implicate that this is something that Lord
Collins should have done. Else why bring it now as a topic? Walker goes on:
“[capacity being] the focus of the [convoluted] §35(7) and CPR r17.4(4).”
Walker is taking a syntactic approach to conceptual analysis. He is stating
that ‘capacity’ is being USED in that convoluted section – point 7 in
particular – and the CPRr17.4(4). Walker is not specifying the SYNTACTICAL ROLE
that ‘capacity’ is playing there. Just summarizing the occurrences of
‘capacity’ in both places as being ‘focal’ (Walker uses ‘focus’).
Walker goes on: “In this context […]” -- Strictly, that should be perhaps, in
THESE TWO CONTEXTS. As Grunebaum would point out: “Philosophers often say that
context is important. In which context are philosophers saying this?” It can be
argued that the context of section 35(7) is slightly different from the context
of the CPRr17.4(4). And Walker later allows for some divergence.
Walker goes on state: “[The concept of] “capacity” is “being used in the SENSE
of legal competence or status to bring or defend a claim,” rather than, as
McEvoy notes, ‘physical competence’ or ‘mental competence.’ A moral philosopher
who takes the concept of a ‘legal right’ as derivative from the more basic
concept of a ‘moral’ right might find this problematic, in that a ‘legal’
competence would seem to implicate a ‘moral’ competence, which in turn would
implicate some ‘mental’ or as I prefer ‘psychological’ competence.
Walker goes on: “It is a competence that one may have in one’s own right or on
behalf of another person.” The SAME MEANING of [the concept of a] “capacity”
applies in CPR r17.4(4).” I.e. CPRr17.4(4) is NOT ‘equivocating,’ the
implicature being.
Walker concludes para 101: “This means that an alteration in capacity is an
alteration from a “personal” capacity to a “representative” capacity.”
Strictly, an ‘alteration’ in capacity may take different forms. It is in the
case under consideration that a PARTICULAR alternation is selected. A legal
capacity which is qualified as ‘personal’ becomes, or as Waker would prefer,
‘gets altered,’ to a capacity which is now qualified as ‘representative.’ This
may be the most common ‘alteration,’ but other alterations seem perhaps
‘conceptually’ conceivable.
Walker notes: “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.”
Or these two contexts, strictly.
Walker: “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”.”
Note that the use of ‘or’ and ‘both,’ by Lord Walker, seem to implicate that we
do not have here one best examples, but TWO best examples! (As Grunebaum would
say: “Those two were the best Christmas presents I ever got! Thank you, Karen!
Thank you Timothy!”)
McEvoy notes: “I [did] explain how Lord Walker gives the ‘sense’ of [the
concept of] capacity at issue in the Roberts case as concerning the right (and,
in that sense, "capacity") to bring or defend legal proceedings.”
Perhaps ‘capacity’ is too Latinate. When McEvoy notes above, “the right (and in
that sense, ‘capacity’) to” do this or that, I think J. L. Austin would prefer
‘can’ (vide Austin, “Ifs and cans” – “If ifs and cans were pots and pans,
there’d be no work for tinkers.”). I think that defining ‘capacity’ in terms of
‘right’ may equivocate on whether, like Socrates, we are using ‘right’ morally,
or like Thrasymachus, using ‘right’ legally (vide Grunebaum, “Plato’s Republic,
and Philosophical Eschatology.”).
McEvoy: “This 'sense' we might call (a).”
We might. I would think that ‘capacity’ has only ONE sense. And that it is only
when ‘qualified’ – as in “legal capacity,” that the more complex phrase
acquires a more complex analysis – in terms of ‘right’ or the modal verb ‘can.’
McEvoy: “Other [alleged] senses [of ‘capacity’] were briefly canvassed …,
including mental and physical capacity. [… T]he answer to specific legal
questions concerning these forms of "capacity" is relative to the problems
being addressed.”
“A has a capacity if A can sue” seems to be a specific application of the more
general and only sense of ‘capacity,’ which, admittedly, is perhaps too
Latinate a concept – when the brief Anglo-Saxon ‘can’ seems to do just fine.
McEvoy: “So we can have "physical capacity" in more than one sense, and "mental
capacity" in more than one sense.”
If ‘legal’ “capacity” involves, or implicates, as I prefer, ‘psychological’ (or
‘mental’ capacity) there seems to be a pretty complex ‘architecture’ for the
concept of ‘capacity’. Do we say that a physical compound has this or that
capacity? We do: salt has the capacity to dissolve in water, but not in aqua
regia, eg. But surely we wouldn’t like to say that salt can sue (so both a
‘legal’ and a ‘psychological’ qualification would be a ‘conceptual’ category
mistake).
McEvoy: “E.g. A disabled person may show they lack the "physical capacity" to
move 100 metres when this is judged relative to problems relating to the
determination of disability benefits, as they may lack "physical capacity"
relative to addressing this problem when they could move 100 metres but not in
reasonable comfort or in a safe manner. The same person may be found to have
had the "physical capacity" to move 100 metres to carry out an act of criminal
vandalism on the car of the Health Care Professional who denied their claim for
disability benefits. That is, relative to the problems addressed by laws
against criminal damage the person has "physical capacity" to move 100 metres,
whereas relative to the problems addressed by disability benefits laws the
person lacks "physical capacity" to move 100 metres.”
Here, it seems we are playing with ‘deeming’: Agent A is deemed to have this
physical capacity in Context C1, and NOT deemed to have it in Context C2.
McEvoy: “Now have we here ONE concept of "physical capacity" with two senses,
or two (or more) distinct concepts of "physical capacity"?”
One sense! And two deemings! (Grunebaum’s favourite example was the dog owned
by a provost at Oxford that was deemed to have a capacitdy to become a cat –
the college has a rule that forbids cats, and, as Grunebaum notes, “surely it
is easier to deem a dog to be a cat than change a time-honoured Oxonian college
rule.”
McEvoy: “This is not a problem for the problem-solving approach but is a
fundamental problem for the concept-analytic approach.”
Well, the provost’s dog IS deemed to be a cat. We may still keep our conceptual
analyses for ‘cat’ and ‘dog’ as they stand. It’s ‘deeming’ that is doing the
philosophical job here. Incidentally, the decision to deem the provost’s pet a
‘cat’ may be seen as a SOLUTION S1 to the problem P1. Surely it is conceivable
that a different Solution S2 would have been to allow for a change of the rules
of the college. So I’m not sure this ONLY pertains to conceptual analysis and
not to problem-solving.
McEvoy: “[Speranza] rightly notes that the term "concept" and the term "term"
may be distinguished.”
Yes, especially when McEvoy seems to favour the lovely expression, ‘draw the
line’ which RELATES to ‘term’ (which is short for ‘terminus,’ as in bus
terminus – a boundary – which lines are supposed to mark when they are drawn.
McEvoy: “[B]ut are we to say every term forms a separate concept for every
separate sense of that term?”
Mmm. I would think that a term has only ONE sense. If you need ANOTHER sense,
you better use ANOTHER term. Grunebaum’s example was “He was caught in the grip
of a vice.” When he moved from Oxford to Harvard he noted that in Harvard,
wisely, the spell ‘vice’ ‘vyse’. Grunebaum concludes that we have TWO TERMS
here (and two concepts with different analyses: ‘one is like a sin; the other a
tool that carpenters use.’)
McEvoy: “[W]hat would make a 'degree of difference' in SENSE sufficient for
that 'degree of difference' to constitute a distinct concept i.e. mark a
conceptual boundary?”
Well, for the monoguist, since for each term there is only one concept with
only one sense, I don’t think we should allow for ‘degrees’ – never mind of
‘difference’. I think even Derrida noted that when he pointed out that in
French, we should distinguish between a degree of ‘difference’ and a degree of
‘differAnce.’
McEvoy: “If conceptual analysis and conceptual boundaries are so vital, why
are we not thrown into complete confusion by Lord Walker's discursus on
"capacity" - especially as Lord Walker fails to offer any conceptual analysis
of the many different senses of "capacity" and how these may (or may not)
correlate with distinct "concepts".”
That is precisely what Grunebaum (or Hart) would ask Lord Walker! I take McEvoy
is making the question a rhetorical one – as in “Is this the worst film of 2018
already?” --. “Why are we not thrown into complete confusion by Lord Walker?”
If Lord Walker were, like H. L. A. Hart was, the Oxford chair of jurisprudence,
perhaps it would be Lord Walker’s duty TO throw his addressees into some
‘confusion’ (or ‘wonder,’ as Socrates prefers) out of which philosophical
illumination (or insight, as P. M. S. Hacker, philosophy don at St. John’s,
would prefer)
McEvoy: “These then are just some of the questions a conceptual analyst should
be able to answer plausibly, or they remain as fundamental question-marks over
the whole conceptual-analytic approach.”
Well, one cannot expect H. L. A. Hart to write a volume on “The concept of
capacity in law.” He did compile, with A. M. Honoré, on the concept of
‘causation in the law.’ It seems pretty obvious that Lord Walker does not want
to expand too much in para 101 as to the problems behind the analysis of the
concept of ‘capacity’. He is only concerned with two contexts of its use, and
concludes, rather abruptly, what the ‘right’ meaning or analysis is, and goes
on to provide two further qualifications of the already qualified ‘capacity’
(capacity qua legal capacity) as in ‘personal’ versus ‘representative’ and the
conceptual conundrums we may be led to if we happen to forget to make all these
fine conceptual distinctions!
Cheers,
Speranza
