[lit-ideas] Re: Hartiana
- From: "Richard Henninge" <RichardHenninge@xxxxxxxxxxx>
- To: <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 19 Mar 2015 05:55:14 +0100
----- Original Message -----
From: Donal McEvoy
To: lit-ideas@xxxxxxxxxxxxx
Sent: Wednesday, March 18, 2015 11:54 PM
Subject: [lit-ideas] Re: Hartiana
Donal writes: ...
A short example from English law may illustrate this last point. There is an
English law prohibiting discrimination on grounds of gender and another law
prohibiting discrimination on the grounds of pregnancy: and they both use the
same formula of prohibiting "less favourable" treatment on these grounds. I
know of an example where a top law firm here has advised as if these two laws
are to the same effect - which might seem to be the case if we take a "literal"
approach, and conclude, from the fact they use the same wording, that they must
have the same "meaning" and therefore the same effect.
This turns out to be utterly incorrect: but it should be obvious to a skilled
lawyer, just looking at the two sections, that it could hardly be correct: for
the simple reason that pregnancy is gender-specific, so if the pregnancy-law
were to the same effect as the gender-law, it would be an utterly redundant law
- because whatever was pregnancy-discrimination would ipso facto be gender
discrimination.
The correct interpretation arises from considering why we need a special law
for pregnancy - what special problems, beyond general gender discrimination, is
such a law seeking to solve? Then we may see that the expression "less
favourable" leaves out the standard by which this is measured ["less
favourable" than what?]: so that if that standard differs, between pregnancy
cases and other gender-specific cases, the pregnancy-law must have a different
effect even though it has identical wording. And the rationale of having a
special law for pregnancy must be that the standard is different.
All would be well and good if Donal had not forgotten that, though the
special law for pregnancy may indeed "seek ... to solve" special problems
"beyond gender discrimination," it nevertheless invokes the same standard as
the law on the latter and therefore has "the same effect." Donal, true to his
problem-solving approach, claims to "see" that the expression "less favourable"
leaves out "the standard by which this [discriminatory treatment] is measured
('less favourable' than what?)," yet it is specious to say that any two words
"leave out" the other words in the sentence and context in which they are used,
in the sections of law under comparison. Donal's self-vaunted problem-solving
approach acts as if it is above "mere words," that it alone among various (more
or less silly) approaches can "show" the true reasoning behind the law, but he
can only do so by radical reductions-to-absurdity of all "conceptual analysis,"
often by encumbering its explanatory attempts with ironic/skeptical quotation
marks vainly proposed by "mere-men," half man, half something
Darwinianly-speaking fishy.
A Digression: All readers of Donal know that he is a master of the language,
but I have installed, so to speak, an automatic response to his writing with
the mental equivalent of bells and whistles that go off whenever his words, to
my thinking at least, begin to get the better of him, for instance in this one
sentence-paragraph in which there are two colons, two "because" clauses, and
two uses of his beloved "utterly."
This turns out to be utterly incorrect: but it should be obvious to a skilled
lawyer, just looking at the two sections, that it could hardly be correct: for
the simple reason that pregnancy is gender-specific, so if the pregnancy-law
were to the same effect as the gender-law, it would be an utterly redundant law
- because whatever was pregnancy-discrimination would ipso facto be gender
discrimination.
My problem is with that colon (colon #2). It's almost always odd in an
English sentence to have two colons. I admit that I read over that colon; I
ignored it. I thought that was the point he was trying to make. It gets
confusing because of Donal's hyper-adjectivalization: with him things are never
(just) "incorrect," they're "utterly incorrect." He uses "merely" as a
subliminal de minimis argument against anything that doesn't suit him. I tried
replacing "for the simple reason that" (in which Donal characteristically, and
probably unconsciously) hyperbolically introduces the first of the two
"because" clauses by larding the cause/reason with the tendentious word
"simple" (with a hard-to-ignore implication that his audience tend toward
simpleton status) by "because." But then, who is being simplistic here?
A Digression Within The Digression: And what is it with Donal and italics!
They are also endemic apparently. Ask Phatic. Like a good lawyer, a "skilled
lawyer," "looking at" (not exactly reading, not merely reading) "the two
sections," Donal can both mean that it is obvious that pregnancy is
gender-specific or that this silly "top law firm here" that "has advised as if
these two laws are to the same effect" has simpl(isticall)y assumed that to be
correct "for the simple reason that [i.e. because] pregnancy is
gender-specific." It is imaginable that the "top law firm" assumed that,
because pregnancy is gender-specific, the effect of the law is the same.
Donal writes: "A so-called "literal" interpretation is itself a construct
with its basis in a tradition and not a mere product of the inherent meanings
of words or the like. Lawyers can forget this because, after being trained in
that tradition, they can become blind that it is their training that guides
them to the so-called "literal". And they can also make gross mistakes because
they latch onto a "literal" interpretation while being blind to the problems
that the relevant wording is seeking to solve."
With all Donal's heavy lifting, in the end it is as if an elephant has given
birth to a mouse: the silly "top law firm" has not noticed ("less favourable"
than what?) that the pregnancy-law's set of potentially disadvantaged persons
is not coextensive with that of the gender-law since the former also includes
members of the same gender, i.e. women who are treated less favourably than
other women on the grounds of their pregnancy. But Donal doesn't spell that
out. He practically has to leave it vague and write ambiguously for it to at
least sound and look like he and his approach are solving (serious) problems
(like the one that I just solved by spelling out the reason for having this
separate law).
The above is also a fair example of "legal logic". And it illustrates the
potential flaws in a "literal" approach that loses sight of the over-riding
need for a problem-solving approach.
And my above is a fair example of a more competent "legal logic" that
illustrates the danger of not cleaving to a fairly "literal" approach and of
instead allowing oneself to engage in the hubristic overarching and
over(rough)riding fantasies of an evolutionary problem-solving approach that
prides itself in alone knowing or being capable of arriving at the real
rationale of the law.
Richard Henninge
University of Mainz
Other related posts:
