[lit-ideas] Re: Hartiana
- From: "Richard Henninge" <RichardHenninge@xxxxxxxxxxx>
- To: <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 19 Mar 2015 13:59:25 +0100
Donal himself provides the key to his misconceptions in the sentence cited in
my previous post in which he evaluates "less favourably" in comparison to the
treatment received by one and the same pregnant woman with "herself were she
not pregnant." He repeats this thinking in the paragraph below when he says
that "[t]his way of measuring 'less favourably' is entirely (dare I say
"utterly" [no, you dasn't]) different to [I'd prefer "different from"] how
'less favourably' is measured between the genders generally--in the latter case
'less favourably' is measured simply [as in "All About That Base" in reference
to "photoshopping"--make it stop!--you dasn't use this word--the S-word to
imply (s-imply) the obvious, patent correctness of the falsehood you are in the
process of propping] by whether you are treated worse than others of the
opposite gender.
Analogously to measuring "less favourably" in the case of a pregnant woman
against the standard of the treatment she would receive "were she not
pregnant," the measurement "between the genders generally" is not at all
"entirely . . . different," but also against the standard of the treatment one
would receive "were one of the opposite gender." And the same applies in the
cases involving disabilities: the treatment must not be "less favourable" than
what one would receive "were one not disabled."
The criterion of "favourableness" of treatment is a fine measure and we would
all be better off understanding it and seeing how it works. Donal prefers
obfuscation and high weather to defend his hobby-horse, the "problem-solving
approach."
Richard Henninge
University of Mainz
""
Richard hasn't thought the problems through i.e. adopted a sufficiently
problem-solving approach. If Richard had, he might have seen that just as
disabled people can claim discrimination where there is no special provision to
offset their disadvantages, so pregnant women can claim discrimination where
there is no special provision to offset their pregnancy-related disadvantages:
each are treated "less favourably" where there is no required* offset for their
disadvantages. This way of measuring "less favourably" is entirely (dare I say
it "utterly") different to how "less favourably" is measured between the
genders generally - in the latter case "less favourably" is measured simply by
whether you are treated worse than others of the opposite gender. In the case
of pregnancy and disability, how non-pregnant and non-disabled others are
treated is beside the point.
Dnl
*What is required is assessed more strictly for pregnancy than for disability
On Thursday, 19 March 2015, 4:55, Richard Henninge
<RichardHenninge@xxxxxxxxxxx> wrote:
----- 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
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