[lit-ideas] Re: Hartiana

  • From: Omar Kusturica <omarkusto@xxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Thu, 19 Mar 2015 18:17:47 +0100

Of course, one of the dangers with the problem-solving approach is that it
could begin to solve more problems than the lawmaker actually intended to
solve. For example, it is possible that the legislator only intended to
provide a limited set of protections to a pregnant woman at the workplace,
in such a way as to maintain the assumption that her working ability
remains unimpaired by pregnancy, and that no special treatment that favours
her is needed. Thus reading the law with the assumption that it is intended
to provide all manner or protection that is not specified in it, because
the legislator just 'forgot' to mention it, may be unwarranted. Of course,
in this particular case one is tempted to say that it's fine, but still we
cannot have a judiciary as a legislator. Some problems are for the
legislators to solve, not for the judges.

O.K.

On Thu, Mar 19, 2015 at 1:59 PM, Richard Henninge <
RichardHenninge@xxxxxxxxxxx> wrote:

>  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 <donalmcevoyuk@xxxxxxxxxxx>
> *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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