[lit-ideas] Jurisprudence: ordinary language philosophy in action today?

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Thu, 21 Feb 2013 13:27:56 +0000 (GMT)


This is a trial that has attracted much media and dinner party interest here: 
where the wife is admitting the crime but for the fact she acted through 
'marital coercion' - a defence we might think that may have made sense in times 
where wives were akin to the husband's property, and meant to obey him, but 
which it is rather immoral and unjust for an educated and career woman to be 
hiding behind these days. 

There is a lot that could be said about the jury's questions and the judge's 
answers, which show the limitations of ordinary language and judicial 
directions, for the judge's answers - even if impeccable in legal terms - might 
be quite unsatisfactory to the jury. 

"Here are the jurors’ questions, and the answers the judge gave to them. 
Q1. You have defined the defence of marital coercion on page 5 of the  jury 
bundle and also explained what does not fall within the definition by  way of 
examples. Please expand on the definition, provide examples of what  may fall 
within the defence, specifically 'will was overborne' and does the  defence 
require violence or physical threat? 
Answer: “The pressure applied by the husband need not involve violence or  
physical threats. The law requires that a husband was present and coercion  was 
to such an extent that she was impelled to commit an offence because she  truly 
believed she had no real choice but to do so.”"

Here the jury seek greater guidance on "will was overborne", by way of further 
"definition" or "examples". But all the judge gives is a paraphrase - "she  
truly believed she had no real choice but to do so": but without any further 
"examples" or further criteria to indicate how this is to be judged. Why only 
this paraphrase by way of reply - which restates the problem rather than 
solving it? There are many reasons but among them: "examples" different to the 
case in hand would not help to say how the case in hand should be treated, and 
it is not for the judge to say by "examples" how the case in hand should be 
treated, therefore the judge should not give "examples" - and if the jury asked 
him to comment on "examples" of their choosing, the judge should still decline 
to comment for similar reasons. 

(But note: negative examples are permitted and given to explain "what does not 
fall within the definition by  way of examples".)

The law takes the view that it is ordinary language ordinarily understood to 
speak of someone's believing they "had no real choice" - and, beyond that, the 
question of what constitutes truly believing you "had no real choice" is the 
question the jury must themselves decide. 

The judge also declines to enter into anything further that might only confuse 
the issue even if it might be analytically correct: for example, by pointing 
out that there is a subjective and objective aspect to "she  truly believed she 
had no real choice" and these aspects are left for the jury to resolve:- so 
that, analytically - given just the 'ordinary language ordinarily understood', 
it might be possible on one reading of "she  truly believed she had no real 
choice" to convict - because, while she subjectively believed or felt she had 
no real choice, objectively she had a choice and so her belief was not a "truly 
believed"; and on another reading to acquit - because, while objectively she 
had a choice, nevertheless she subjectively "truly believed" she had no choice. 
[Those familiar with Kant's first Critique will know the trouble he had 
resolving the subjective and objective aspects of things, and the voluminous 
literature that has ensued, and so
 might understand why a judge might stay clear of trying to sort this out for 
the jury.]

"Q2. In the scenario that the defendant may be guilty but there may not  be 
enough evidence provided by the prosecution at the material time when she  
signed the notice of intent to prosecute to feel sure beyond reasonable  doubt, 
what should the verdict be, not guilty or unable or not safe to bring  a 
Answer: “Turning to page three of my written directions, the direction is  
combining the burden and standard of proof with the need for a majority  
verdict. If, having carefully considered all of the evidence, at least 10 of  
you feel sure of the guilt of the defendant then it would be your duty to  
return a verdict of guilty. On the other hand, if after careful  consideration 
at least 10 of you were feeling less than sure of guilt, then  it would be your 
duty to return a verdict of not guilty. And so it follows  that if at least 10 
of you are not sure, the appropriate verdict is one of  not guilty.”"

Here the jury's question is both somewhat unclear and perhaps confused - so the 
judge simply repeats the direction they should be following. 

"Q3. If there is debatable evidence supporting the prosecution case can  
inferences be drawn to arrive at a verdict? If so can inferences/speculation  
be drawn on the full evidence or only where you have directed us to do so? 
Answer: “The drawing of an inference is a permissible process. Speculation is  
not. In this case the evidence on which the prosecution relies is largely  
undisputed, and where you are willing to draw inferences from that is  entirely 
a matter for you."" 

Now what this comes to is that "speculation" is impermissible but the "drawing 
of an inference" is permissible. How to tell one from the other? Well, one is 
impermissible and one is permissible....

"Q4. Can you define what is reasonable doubt? 
Answer: “The prosecution must make you feel sure beyond reasonable doubt. A  
reasonable doubt is a doubt that is reasonable. These are ordinary English  
words that the law does not allow me to help you with, beyond the written  
directions [he had already given them]”."

Got that: "A  reasonable doubt is a doubt that is reasonable." What is really 
important is why the judge is not allowed to go further - for reasons similar 
to why the judge should not give "examples" or criteria of a "will overborne"; 
nor should perhaps the judge explain further - with examples or criteria - the 
difference between "speculation" and the "drawing of an inference". 

"Q5. Can a juror come to a verdict based on a reason that was not  presented in 
court and has no facts or evidence to support it? 
Answer: “The answer to that question is a firm no. That is because it would be  
completely contrary to the directions I have given you.”"

This is an interesting one. This may be impeccable as a matter of law but the 
fact is this: if a jury "come to a verdict based on a reason that was not  
presented in court and has no facts or evidence to support it" then nothing 
much can be done about it (by way of appeal, for example). It is therefore 
clear the jury have the power to do this, de facto. Whether that power is de 
jure has never actually been decided: after all, if it is de facto it would be 
academic whether the power is de jure - and the courts have ruled they do not 
rule on academic questions. (Its de facto exercise has never led to an appeal 
where its de jure status might be decided.)

So why has the judge not said this, but instead maintained they cannot "come to 
a verdict based on a reason that was not  presented in court and has no facts 
or evidence to support it"? Because telling the jury that they can "come to a 
verdict based on a reason that was not  presented in court and has no facts or 
evidence to support it" might be tantamount to inviting them to engage in 
"speculation", which is impermissible.

As Wittgenstein might now say - "Do you see? Do you see what is shown here?" 

But of course a better jurisprudence is a Popperian one which accounts for all 
this in terms of specific problems and their possible solutions.*

Not holding his breath for an explanation of the difference between 
'philosophical logic' and a 'logico-philosophicus'


*As to claims like "A  reasonable doubt is a doubt that is reasonable", when 
considered for their lack of explanatory power, Popper is inclined to blame the 
baneful influence of certain analytic philosophers: see Realism and the Aim of 

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