I wrote:>Kearleyrevolves around or implied or implicit meanings – or what might
be termed“implicature”.>
This should have read:>Kearleyrevolves around implied or implicit meanings – or
what might be termed“implicature”.>
Yet this was probably obvious, perhaps even by implicature.
DL
On Thursday, 3 December 2015, 12:22, Donal McEvoy
<donalmcevoyuk@xxxxxxxxxxx> wrote:
R v Kearley[(1992) 2 AC 228] is another SupremeCourt/House of Lords case that
bears on ‘problem-solving’ vs. ‘conceptualanalysis’ as the proper understanding
of the processes of legal decision-making(and of human thought and knowledge
more generally). Kearleyrevolves around or implied or implicit meanings – or
what might be termed“implicature”. The underlying question might be put as
‘What are the contents of the language used?’ In Kearley “contents” were taken
togo beyond stated or express contents and this opens the door to
determiningwhat implied or implicit contents are part of the language used.
The underlying question ‘What are the contents of the words used?’ is not
stated in terms in Kearley but is my attempt toreduce its problematique to a
simplequestion. This simple question gives rise to complex issues and its
answer isbest seen as an attempt to best solve these complex problems. In
Kearley these problems areconnected to the operation of specific rule – the
hearsay rule as it governs criminalcases. It would be a colossal mistake to
treat Kearley as if it were the product of a disquisitiongenerally on the line
between implied hearsay and non-hearsay, undertakenwithout any reference to any
more specific ‘problem-situation’ or background,and then with the results of
this disquisition being applied to the specific operationof the hearsay rule as
it governs criminal cases. This would be a mistakebecause it would overlook the
problem-solving character of the courts’endeavours. As argued in other posts,
this ‘problem-solving character’ cannotconvincingly be replaced by, or made
consistent with, any view that takes thecharacter of the courts’ endeavours to
be ‘conceptual analysis’. On closeexamination, Kearley is anobject-lesson in
how ‘problem-solving’ trumps ‘conceptual analysis’ even when we are concerned
very directlywith the analysis of language and its import. At the time of
Kearley,a useful legal definition of hearsay would be ‘an out-of-court
statementadduced to prove the truth of its contents.’ Thus any statement used
asevidence of the truth of its contentsis hearsay with the exception of
testimony itself. If in court Walter testifiesthat he saw Donal drown a turtle
(to the bottom of the well, all the way down)then that testimony is not hearsay
even though it is offered as proof of thetruth of its contents i.e. that
Donaldid drown the turtle. But it is hearsay for Walter to testify to the fact
hetold Robert about Donal’s conduct immediately after witnessing it – i.e.
hearsay, if Walter’s telling Robertis being adduced as evidence that what
Walter told Robert was true. Thusthe legal definition of hearsay does not
merely exclude tittle-tattle or rumouror second-hand accounts: it prevents even
the witness with firsthand knowledgefrom backing up the truth of their
testimony by referring to what they toldothers. As another example: the hearsay
rule means that each of us, strictlyspeaking, cannot testify to our own date of
birth for we don’t know this from‘personal knowledge’ but only from being told
by others or from seeing ourbirth certificate (the latter being admissible
hearsay of the date of birth). Kearleybelongs to a traditional framework
pertaining to the hearsay rule that has nowbeen replaced by subsequent
legislation. “The view of the majority in Kearley, in relation to hearsay,
hasbeen set aside by [section 114 and section 118 of the Criminal Justice
Act2003]” per Rose L.J., R v Sukadeve Singh.In this way Kearley has
beensupplanted. But Kearley hasnot been overthrown in a way that shows it was
wrongly decided within the legalframework of its time. The new legal framework
seeks to remove the“implicature” problems in Kearleyby re-defining hearsay as
being limited only to stated “contents”, so that unstated or implied ‘contents’
now falloutside the hearsay rule – though it remains to be seen how sustainable
thisredefinition will prove in the long term and the way the new
legislationsupplants Kearley has onlybeen endorsed at the level of the Court of
Appeal and has not yet been endorsedby the Supreme Court itself. Be all that as
it may, the way Kearley has been supplantedmerely reinforces that subsequent
legislation did not replace one ‘conceptualanalysis’ with another but replaced
one solution (to a problem, or set ofproblems) with another. As mentioned,
Kearleymay be viewed as a case concerned with “implicature” i.e. with the
unstated implications of what has been said or withwhat is implicit in a
statement. The case tries to draw the line betweenhearsay evidence and
circumstantial non-hearsay evidence of a purely factualkind. This line becomes
blurry because we can draw conclusions from ‘wordsused’ by two routes – (a)
from the truthof their explicit and implicit “contents”or (b) from inferences
from the fact that such words were used(irrespective of their “truth”). Here
(a) is a hearsay-type route whereas(b) is using the words as circumstantial
non-hearsay evidence of a purelyfactual kind. But on what basis do we
ultimately separate cases of type (a)from type (b)? The problem becomes acute
in relation to separating out caseswhere we are relying on implicit “contents”
(in a way that falls within thehearsay rule) from cases where we are relying on
inferences from explicit“contents” (in a way that falls outside the hearsay
rule). Is there anythinglike a criterion for making such a separation? We might
start by giving clear-cut examples of (a) and (b).A clear-cut (a) would be
where John testifies that he was told by Jeremy, “Isaw James strangle Joseph”,
where these words are being relied on as evidence that James did strangle
Josephi.e. as evidence of the truth oftheir contents. A clear-cut (b) would be
where John testifies that he was toldby Jeremy, “I saw James strangle Joseph”,
where these words are being relied onas evidence that Jeremy could speak some
English or to prove the fact of whatJeremy said (but not the truth of its
contents).* The framework for the ‘separation’ debate can be drawn interms of
two contrasting thoughts. First, if we testify that we frequentlyobserved X say
to Y “Good morning Mr. Smith” (as evidence that Y is called Mr.Smith), that is
not hearsay because “Good morning Mr. Smith” does not assertthat the person to
whom it is directed is Mr. Smith – rather we may infer, fromthe fact it is said
rather than the truthof its contents, that the person to whom it is directed is
Smith. Second,if a man carries out a wordless inspection of a boat and then
agrees to hirethe boat, his wordless inspection must be hearsay by conduct of
the fact thatthe boat is seaworthy – just as much as if he had uttered
expressly “I find theboat seaworthy” at the conclusion of his inspection. There
is an apparent tension,perhaps irreconcilable, between these two contrasting
thoughts. Other kinds ofcase could be multiplied which might put us in two
minds as to whether thepurpose for which the evidence is adduced means it
constitutes (a) hearsay byvirtue relying on the truth of its implicit
“contents” or (b) non-hearsaycircumstantial evidence by virtue of relying only
on inferences from the factcertain words were used. The problem came before the
Supreme Court in Kearley in this form. Policeraided a flat on the basis it was
a drug den. During their occupation of theflat, its phone rang and there were
visitors – with callers asking things like“Have you got any ‘charlie’
[i.e.cocaine]?” Were these inquiries hearsay of the alleged fact that the
premiseswere being used to supply drugs? Or are they merely non-hearsay queries
fromthe fact of which we might infer that the premises were being used to
supplydrugs? We might begin by asking whether and how this issue can beresolved
by ‘conceptual analysis’? My suggestion is that it cannot be resolvedby
‘conceptual analysis’ and, if so, this is a telling argument against theclaim
that ‘conceptual analysis’ plays a vital role in legal decision-making.
Kearleysplit the Supreme Court – decided by a majority of 3 to 2 Law Lords,
whosethree judgments also over-ruled a three-judge Court of Appeal. The 3-5
splitreveals differences in the approaches of the most senior British judges to
theunderlying question of “implicature”. Though the majority view may
bepreferable because it offers a better solution to the problem(s) than that
ofthe minority, opinions on this are secondary to examining whether these
differencesare best explained in terms of problem-solving or conceptual
analysis. A general characterisation of these differences is thatjudicial
opinion in Kearleydivides into two schools of thought. One might be called
the‘functional-pragmatic’ school represented by the majority, the other
the‘assertoric-intention’ school represented by the minority. The majority view
isthat the “contents” are to be determined by the purpose (or function) for
whichthey are adduced in court [i.e. whatthey are being used to prove in
court], whereas the minority view is that the“contents” are determined by the
intended assertoric purposes of their source [i.e. what their source intended
toassert]. My contention is that, first, ‘conceptual analysis’
cannotconvincingly explain these differences in judicial opinion and the
adequacy oftheir rationales (both views are ‘conceptually’ sound enough);
second, as per previous posts concerning otherlegal cases, the
‘problem-solving’ analysis of Kearley is superior to any alternative
‘conceptual analysis’.Third, this superiority is fundamentally a superiority of
explanation and this is significant when assessing the competingclaims of a
‘problem-solving’ approach vs. ‘conceptual analysis’. DL*There is a further
case (c) that might be mentioned – where‘words used’ are ‘original evidence’.
The case (c) differs from (b) because thelaw views the ‘words used’ as
constitutive of what they prove rather than‘facts’ from which inferences may be
drawn. Case (c) is important to proof ofentering into agreements, including the
marriage contract: the words “I do” arenot hearsay of agreeing to marry but
constitutive of that agreement, and sotestimony to the fact a person said “I
do” is not adducing their “I do” ashearsay. Nor is it using the fact they said
“I do” as a basis for inferring their agreement: the act ofsaying “I do”
constitutes their agreement rather than being words that areevidence from which
their agreement can be inferred. [Case (c) was taken up by J.L. Austin in his
notion of“performative utterances”; but there are some Popperian words to be
saidagainst Austin’sunderlying philosophical framework from a ‘problem-solving’
POV. (Austin’s ‘How To Do Things With Words’ was echoedin the legal field by
Twinings’s ‘How ToDo Things With Rules’, against which some critical words may
also be aimedfrom a ‘problem-solving’ POV.)].
