[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: Tue, 5 Dec 2017 12:49:36 +0000 (UTC)
It seems the analysandum is ‘to alter a capacity,’ and we are not dealing with
_any_ capacity but with the ‘altering’ of capacity C1 to capacity C2.>
Here to consider the 'alteration of capacity' is to consider 'alteration' in
relation to a specific form (or sense) of "capacity" viz. the right to bring
and defend proceedings.
The question of "alteration" is thus not independent of the specific character
of "capacity" in issue i.e. the Law Lords are not concerned with "alteration"
in relation to all forms of "capacity" known to law - that is, their concern is
'problem-specific'.
Not only that, but it is apparent that the question of "alteration" is
inextricably linked with the question whether the distinction between one
"capacity" and another (in the relevant sense, given above) is a distinction of
some substance or a mere formality: the more we view such distinctions (in
capacity) as of some substance, the weaker becomes the case for "alteration" -
because we are, in effect, rejecting the view that the "alteration" sought (in
capacity) is merely a change in a formality.
The view that the distinction between, say, representative capacity and
personal capacity, is of some substance is a matter of substantive judgment -
not of CA. In effect, the majority view is predicated on the change of capacity
being such a significant change it amounts to bringing a new cause of action.
And so, in terms of the Limitation Act, the question is whether a new cause of
action, that is out-of-time to be commenced as such, can be brought by way of
amendment of a different pre-existing cause of action. The majority answer, as
given by Lord Collins, is no, never - such an amendment could never be
permissible, for this would be to allow circumvention of the effect of the
Limitation Act and related provisions.
My PS-based contention remains that all of this can be explained without
relying on any form of CA.
DL
From: "dmarc-noreply@xxxxxxxxxxxxx" <dmarc-noreply@xxxxxxxxxxxxx>
To: lit-ideas@xxxxxxxxxxxxx
Sent: Tuesday, 5 December 2017, 12:18
Subject: [lit-ideas] Re: Hands Across The Bay
The conceptual analysis of ‘capacity’ and theconceptual analysis of ‘alteration
of capacity’. So, is this about conceptual analysis? Once, Grice wasadvised by
J. L. Austin to check with ‘the dictionary.’ “I care a hoot what thedictionary
says.” “And that’s where you make your big mistake.” Austin isimplicating that
perhaps ‘hoot’ is too strong a word to expect from a juniorcolleague. Lord
Walker was referring to ‘the concept ofcapacity,’ which reminded me of
Grunebaum. It seems the analysandum is ‘toalter a capacity,’ and we are not
dealing with _any_ capacity but with the‘altering’ of capacity C1 to capacity
C2. As H. L. A. Hart would say, it’s allabout rules and meta-rules so one has
to be careful, because, to use aredundancy favoured by Searle, rules ‘tend to
be regulative’ – as opposed to‘constitutive.’ (Grunebaum never understood the
distinction). So what does the dictionary say? The concept of‘capacity’ is
possibly not too crucial legally, since it the TERM ‘capacity’was introduced
only in the 15thcentury – and surely the Anglo-Saxons had law before that –
from the French capacité , itself from theaccusative Latin “capacitatem,”
itself from “capax,” “capaci-,” veryabstractly definable as “able.” We see that
for the Ancient Romans, ‘capax’ hadonly ONE sense, as it should. When it comes
to English, it is found to be usedas early as 1481, implicating an “ability to
receive or contain; holdingpower”: 1481. Caxton, “Mirror of World”: “The
capacity andgreatness of heaven.” Heaven has a capacity – a capacity and a
greatness. 1555.R. Eden, Peter Martyr of Angleria, “Decadesof New World”:
“Havens, of capacity to harbour great navies.”Now it’s a haven that has a
capacity to harbour a great navy. A pot of no bigger capacity thanto hold them
only.” 1616 Shakespeare, “Antony & Cleopatra”: “Had our great palacethe
capacity to camp this host, we all would sup together, and drinkcarowses to the
next day’s fate.” 1702. Theophrastus:“There is a certain degree of capacity in
the greatest vessel, andwhen it is full, if you pour in still, it must run
out.”Thereis also, incidentally, an early figurative usage – i.e. NOT as
applied to the‘physical’ dimension: 1578. “Bk. Christian Prayers in Private
Prayers,” “That I may so drink of thee, according tomy capacity, as I may live
forever.” 1631.Bishop J. Hall, “OccasionalMeditations”: “All favourable
promises presuppose a capacity inthe receiver.”1846. T. De Quincey, “Notes on
Gilfillan’s Gallery of Literary Portraits”:“Men of genius have a larger
capacity ofhappiness.”“Capacity”can be used, still as applied to the ‘physical’
(Popper’s W1) dimension, morenarrowly, for a “capacity for heat, capacity for
moisture,” etc.: “thepower of absorbing heat, etc. capacity of a conductor”
(Electr.): 1793.T. Beddoes, “Observ. Nature & CureCalculus”: “The great
capacity of the arterial blood for heat.” 1863. R. Culley, “Handbk. Pract.
Telegr.”: “By thecapacity of a condenser or cable is meant its power to receive
a charge.” 1878.T. Huxley, “Physiography”: “Thehotter the air the greater its
capacity for moisture.” 1885. H. Watson, “Math. Theory Electr. & Magn.”: “The
capacityof a conductor in presence of any other conductors is the charge upon
itrequired to raise it to unit potential, when all the other conductors
havepotential zero.”“Capacity”can also be used to mean, more specifically, “the
power of an apparatus to store staticelectricity;” but some pedants prefer
“capacitance” here. Also attributively, denoting an apparatuswhich gives
additional capacity, as capacity cage, capacity earth. 1777.T. Cavallo, “Compl.
Treat. Electr.”: “The celebrated Father Beccaria supposes thatthe action of
rubbing increases the capacity of the electric, i.e. renders that part of
theelectric, which is actually under the rubber capable of containing a
greaterquantity of electric fluid.” 1903.Westminster Gazette: “Theoscillatory
circuit consists of a light wire cage, or ‘capacity’.” 1906. A. Collins, “Man.
Wireless Telegr.”: “Capacitycage, a cylindrical cage made of wire and placed
at the top of theaerial wire to give it additional capacity.” 1923. “Daily
Mail”: “If you are particularly bothered bythe proximity of wires it is
worthwhile to try the effect of substituting a‘capacity earth’ for the ordinary
earth connection. The capacity is a wire orwires stretched out below and
parallel to the aerial above but insulated fromthe earth.” 1932. C. Smith,
“Intermediate Physics”: “The capacity ofa sphere expressed in E.S.U. is
numerically equal to its radius in centimetres.” 1948. C. Coulson, “Electr.”:
“If the potentialdifference between the plates is V,we define the capacity C
bythe formula C = Q/V.” 1959. “Chambers'sEncycl.”: “The capacity of the charged
conductor is increased,i.e. it can hold a bigger charge for a given
potential.”“Capacity”can also be used to mean, still as applied to this
‘physical’ dimension, the “ability to provideaccommodation (for the discharge,
transport, etc.) of a certain amount orvolume; also specially in Physical
Geography, the ability tocarry away detritus, measured by the quantity which
passes a given point in agiven time.” 1885. Eng.Illustr. Mag.: “The Nene does
not discharge its waters so rapidly as itought. Cut off the bends if you want a
more efficientdischarging capacity.” 1892. “Jrnl. Soc. Arts”: “The capacity
ofthe present tunnel is sufficient to provide 100,000 horse-power applied to
theturbines.” 1900. Jrnl. Soc. Arts: “The capacity of the largercanal would be
over 20,000,000 tons a year.”Also,thelargest audience that a place of
entertainment can hold; a situation in which atheatre, cinema, or the room when
H. P. Grice delivered his John Locke lecturesat Oxford, etc., is full; spec.
inphr. to capacity: with all available room occupied; hence in general
use,full; to the limit. 1908. L. Merrick, “The Man who understood Women”:
“Onthe second Saturday night they played to ‘the capacity of the house’.” 1919.
Honey Pot: “Why there is hardly a theatre in the West Endplaying to capacity,
week in week out.” 1929. J. Priestley, “GoodCompanions”: “We’ve got going in
the town. Another week and it wouldbe capacity every night.” “Turning money
away, my dear; capacity tothe roof.” 1937. D. Marlowe, “Coming, Sir!”: “The
other stows werefilled to capacity.” 1949. P. Wodehouse, “Mating Season”: “I
tookmy place among the standees at the back, noting dully that I should be
playingto absolute capacity.” 1958. Spectator::“The bank-note paper mills
worked to capacity throughout the year.”Also,in industry, rather figuratively,
the ability to produce; equivalent to ‘fullcapacity.’ 1931. “Times Trade &
Engin.”: “The production of bituminous coal inU.S. by ‘mechanical mining’
increased to 37·8 million tons in 1929, and thisdoes not represent capacity,
for short time and experimental work reducedthe total below the maximum.” 1940.
“Economist::“The existing capacity must not only be worked to the limit, it
mustbe expanded.” 1959. “Listener”:“The British economy, so far from being
inflationary, was suffering from amarked amount of excess capacity.”Also used,
still in the ‘physical’dimension, to mean ‘content.’ – ‘superficial, Area.’ But
also cubic,Volume, solid content. The ‘measure of capacity’ is the measure
applied tothe content of a vessel, and to liquids, grain, or the like, which
take theshape of that which holds them. 1560. L. Digges, “Geom. Pract.:
Pantometria”: “You mayreadily measure all equiangle figures, what capacity
whatsoever they beof.” 1571. T. Digges in L.Digges's Geom. Pract.: Pantometria:
“Rules for the invention ofhis capacity superficial and solid.” 1658. Sir T.
Browne, “The Garden of Cyrus,” in Hydriotaphia: Urne-burial: “Thepresent urns
were not of one capacity, the largest containing above agallon.” 1699. L.
Wafer, “New Voy. & Descr. Isthmus Amer.”:“Of the capacity usually of a gallon
or more.” 1818. M. Faraday, “Exper. Res.”: “A glass globe of the capacity of
about 140cubic inches.” 1866. J. Herschel, “FamiliarLect. Sci. Subj.”: “Our
ordinary measures of length, weightand capacity.” Also,the totalcylinder volume
that is swept by the pistons in an internal-combustion engine. 1903 Motor:
“Assuming that cylinder volume were taken as thestandard..there would be no
possibility of definitely ascertaining whether thetwo or four-stroke motor gave
the better system, because the two-stroke would,on cylinder capacity, receive
an enormous advantage.” 1936 Motor: “The clever way in which eightcylinders,
affording a total capacity of 4½ litres, have beenarranged in so compact a
space.” 1946 Autocar Handbk: “On January 1, 1947..the H.P. tax will
besuperseded, for cars first registered after that date, by a tax on
thecylinder capacity of the engine; that is, the volume swept by thepistons.”
1966 MotorCars: “A six-cylinder engine..need be no more uneconomic in
petrolconsumption than a four-cylinder engine, if the cylinder capacity
issuitably adjusted.” 1977. E. Crispin, “Glimpsesof Moon”: “There were Hondas
and Suzukis and Yamahas and even a fewNorton Commandos, ranging in capacity
from 400 to 750 c.c.” 1984. Economist: “The figures on..the fuelconsumption of
cars were calculated assuming that..lower transmission ratios orlarger engine
capacities would be used to compensate for performancelosses as octane
numbers..were reduced.” Also a containing space, area, or volume. 1649. W.
Blith, “Eng.Improver”: “Into a square or anoval capacity; or else into a
circular plot.” 1757 E.Burke Philos. Enq. Sublime &Beautiful: “The whole
capacity of the eye, vibrating in allits parts.” Especially,a space ofthree
dimensions; a hollow space, a cavity. 1541 R.Copland, “Galen's Fourth
Bk.Terapeutyke,” in Guy deChauliac's “Questionary Cyrurgyens”: “In dividing the
trunk between theneck and the legs, is two great capacities.” 1594. T. Bowes,
P. de laPrimaudaye French Acad.: “There are two capacities or holowplaces in
the heart.” 1662 J. Glanvill Lux Orientalis: “Not..a meervoid capacity, for
there are no such chasms in nature.” 1704 J.Harris Lexicon Technicum:
“Carcass, is an Iron Case, orhollow Capacity, about the bigness of a Bomb.” It
is in this usage that itis meta-figurativelyused: 1587. Sir P.Sidney & A.
Golding, P. de Mornay Trewnesse Christian Relig.: “Influence that floweth into
the capacitie of ourvnderstanding.” 1752 Johnson Rambler: “I will fill the
whole capacity of my soulwith enjoyment.”Cheers,Speranza
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