McEvoy now makes apt reference to “[a] famous legal maxim.”
I like that! It reminds me of Grunebaum’s so-called ‘maxims’ (He is ‘echoing’
Kant – a ‘maxim’ of course is the opposite of a ‘minim’)
“[This maxim] has it that “Equity looks to the substance and not to the form.””
This looks more like an adage, as per Bing Crosby, “You know the saying that
all who love are blind;/it seems that ancient adage still applies;/I guess I
should have seen right thru you,/but the moon got in my eyes.” (great
harmonies!). Adage vs. maxim. Adage: i. All who love are blind. Can one turn an
adage into a maxim? Not for Kant! McEvoy’s adage is built on the substance-form
distinction, which is good. It’s almost Aristotelian, in that Aristotle was
into ‘form’ (or form with matter, ‘hylemorphism’) and of course into
‘substance’ (hypousia).
McEvoy goes on: “More generally, and by problem-solving and not conceptual
analysis, the law bases its reasoning around judgments as to 'matters of
substance'.”
Or as the adage goes, ‘the substance and not the form.’
McEvoy: “Even the role of ‘formalities,’ and their scope and effect, is a
matter of judging substantive matters connected to the rationale for the
specific ‘formalities’ at stake. ‘Formalities’ like the need for a contract for
land to be in writing or a will to have two witnesses, serve substantive
purposes.”
So perhaps they are not MERE formalities? But the implicatures of ‘mere’ are,
admittedly, tricky.
McEvoy: “As per the problem-solving approach, I suggest “linguistic botany”
will not get us very far. Some of what follows is an attempt at reasoned
speculation, as it goes beyond the terms of the discussion as expressed in the
judgments in Roberts.”
Good. The implicatures, as it were!
McEvoy: “It is therefore perhaps more conjectural than some other ‘conjectural
knowledge,’ especially as I have not delved deeper in research and am still
relying on an understanding of Roberts from a close reading several months ago.
Nevertheless it may help throw light on the Roberts decision.”
Good.
McEvoy: “It is ‘substance,’ not conceptual analysis,”
Oddly, Grunebaum once lectured on ‘substance,’ which is for Aristotle, the
first category. It was a joint seminar with Strawson. And Grunebaum was
somewhat offended that when Strawson published (with Methuen) his “Individuals:
an essay in descriptive metaphysics,” “he didn’t care to quote me once!”. The
Grunebaum papers at Bancroft contain LOADS of the unpublished lectures, and
they all deal with the philosophical technical usage of ‘substance’.
Grunebaum’s example in those lectures pertained to an individual named
“Bunbury”:
i. A: Bunbury is really disinterested.
B: Disinterested persons do not exist. Real disinterestedness does not exist.
A: Yes, they do. Disiniterested persons do exist. Yes, it does. Real
disinterestedness does exist. Bunbury is really disinterested. Cfr.
ii. A: Bunbury is really disinterested.
B: There is no such person as Bunbury.
A: Yes, there is. He is really disinterested.
And
iii. A: Bunbury is in the next room.
B: There is no such thing as Bunbury.
A: There there is; he is in the next room.
End of excursus on Grunebaum on Bunbury as a substance – for an illustration of
Grunebaum is thinking when he sees ‘substance’ as philosophicalese.
McEvoy: “… explains why the courts have a different attitude to the Roberts
situation [from a] case where a person sues for dependants under statute (Fatal
Accidents Act), aside where a statutory exception to provide for [a case] where
the ‘personal representative’ takes no action, the Fatal Accidents Act mandates
that the plaintiff only bring proceedings as ‘personal representative,’ i.e. in
a ‘representative capacity’), or the Fatal Accidents Acts plaintiff fails to
formalise their position properly by obtaining letters of administration before
they commenced proceedings. In [the Fatal Accidents Acts] case, the court views
this ‘error’ as a ‘technical’ one, a defect in a ‘mere formality,’ where the
interests of justice will ceteris paribus favour allowing correction of the
‘merely formal’ error. Why? In the [Fatal Accidents Act] case, no one who
understands the basis of the ‘cause of action’ for dependants, which arises by
way of the relevant statute, can believe other than that the claims MUST be
made in the plaintiff's ‘representative’ capacity,’ for, one exception aside,
there is no other legal [logical? Analytic? A priori?] POSSIBILITY in respect
of the Fatal Accidents Act ‘cause of action.’ Thus, the plaintiff's
‘representative’ capacity can NOT come as a surprise to the defendants: the
defendants can HARDLY claim any prejudice if some amendment IS allowed to
correct this mere formal ‘error’ in the mandated ‘representative’ capacity,
e.g. by pleading grant of letters by subsequent amendment to a pre-existing
action, though letters were only granted after the proceedings were commenced
(and so, technically, the plaintiff does NOT have the requisite ‘capacity’ when
proceedings are commenced). The Fatal Accidents Act case is SUBSTANTIALLY
different from the Roberts case. In the Roberts case, it is NOT a purely legal
[logical? Analytic? A priori?] ‘impossibility’ that the plaintiff might have a
‘cause of action’ against the defendants that can be pursued in the plaintiff's
‘personal’ capacity. A viable claim in the plaintiff’s ‘personal’ capacity as
beneficiary, against the solicitors who acted for the estate, is NOT a purely
legal [logical? Analytic? A priori?] impossibility. This is because the
plaintiff’s claim is based on negligence at common law, and not, as in the
Fatal Accidents Act, on a statute mandating proceedings be brought by a
‘representative.’ Consequently, the defendants in the Roberts case cannot be
taken to ASSUME that the ‘cause of action’ being pursued must be in the
plaintiff's ‘representative’ capacity. The Fatal Accidents Act case and the
Roberts care are thus SUBSTANTIALLY different.”
Which may lead us to counter-factual argumentation, my favourite!
Cheers,
Speranza
