[lit-ideas] Re: Hartiana
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 19 Mar 2015 21:48:41 +0000 (UTC)
The example of "urinary frequency" was meant to bring out that a woman with
pregnancy-related "UF" is entitled to different treatment to a non-pregnant
woman or a man with a "UF": the 'different treatment' is to offset her
disadvantage. Likewise a disabled person may be entitled to different
treatment, by way of provision of a ramp for their wheelchair, whereas a
non-disabled person would not be entitled to a ramp being provided (including
someone in a wheelchair with a broken leg - as a broken leg is too temporary to
qualify as a disability).
Despite my trying to make this clear by example, Richard still maintains as
follows:
>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.">
This is legally and logically unsound: there remains a clear logical and legal
difference between how "less favourably" is judged in cases involving pregnancy
and disability and how it is judged in cases involving gender or race.
Richard's precis is specious: for the phrases "were she not pregnant" and
"were one of the opposite gender" are not logically analogous despite their
superficial similarity of form.
Let's go at this another way. The explanation for the difference is that the
law takes 'being disabled' and 'having pregnancy-related disadvantages' as
inherently disadvantageous - and equality law requires that this inherent
disadvantage be offset so as to bring those disadvantaged to the same level as
those not disadvantaged. Whereas no race or gender is regarded as an inherent
disadvantage - only worse treatment on the ground of race or gender puts one at
a disadvantage: so equality law only requires that one is not disadvantaged by
being treated worse on the ground of race or gender.
Consequently, race and gender discrimination generally revolve around whether
there has been 'worse treatment' - by comparison with another race or gender.
But pregnancy and disability discrimination do not depend on there being 'worse
treatment' in this sense:- otherwise we could defend against having to build an
access ramp for the disabled by saying no ramp is not 'worse treatment' because
we didn't build one for the able-bodied, or defend against giving extra toilet
breaks to a pregnant woman with "UF" by saying this is not 'worse treatment'
because no one else gets extra toilet breaks.
Pregnancy and disability discrimination revolve around whether enough has been
done to offset the inherent disadvantage so as to the leave the claimant at the
same level as those not disadvantaged by pregancy or disability. By
implication, this duty to offset the disadvantage also outlaws 'worse
treatment' - as the greater duty includes the lesser. But this inclusion does
nothing to invalidate the legal and logical distinction drawn between "less
favourably", as applied in cases of pregnancy/disability, and as applied in
cases of race/gender.
It's not that difficult: as someone somewhere said "Equality is about treating
the same the same and treating what is different differently". I am at a loss
if the logic of this escapes Richard; and if neither the "UF" nor the "access
ramp" example get the point across; or if the explanation in terms of
"protected characteristics" that are inherently disadvantageous, and those not
inherently disadvantageous, fails to persuade. But even if nothing more can be
said to persuade Richard, Richard is still wrong - both not to accept there is
a logical distinction here and that it is also the legal distinction here.
Dnl
ldn
On Thursday, 19 March 2015, 17:17, Omar Kusturica <omarkusto@xxxxxxxxx>
wrote:
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
HenningeUniversity 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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