[lit-ideas] Law as problem-solving with W3
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sun, 15 Mar 2015 08:15:51 +0000 (UTC)
(This from thread where it seems blocked.)
Thanks to Omar for his comments, which can (I think) be divided into two parts.
The first part is correct enough [though it is not necessarily correct to
assert "It is only when an insurance claim is made under the contract of
insurance, refused, and a legal suit is lodged that it becomes a 'legal
problem'"].
>Here one might ask what constitutes a 'legal problem' and how we come to
>understanding it. A ship damaged by fire is not prima facie a 'legal
>problem''. It is only when an insurance claim is made under the contract of
>insurance, refused, and a legal suit is lodged that it becomes a 'legal
>problem.' Understanding it as a legal problem would presumably involve an
>understanding of how it is conteptualized in the pertinent legal system. If
>such an understanding were not required or not important, one might wonder why
>we are bringing this before a judge and not, say, before an engineer, who
>would surely be better qualified to understand the technical side of the case.>
But none of the above is that important in addressing the "legal problem" and
it advances no solution to the "legal problem". If, instead of just setting up
the 'legal problem', I had added what is quoted above, then people might think
me spelling out things not worth spelling out and which are irrelevant to the
"legal problem".
>A ship damaged by fire is not prima facie a 'legal problem''>I would agree
>with a version of this - especially if expressed in terms of the difference
>between different kinds of content in W1, W2 and W3: a ship damaged by fire,
>as a mere W1 event, is not in itself a "legal problem". How could it
>constitute a "legal problem" as a mere W1 event - given that a "legal
>problem", even one predicated on W1 events, is a W3 construct and never a
>mere W1 construct?Yet, in the context of setting up the "legal problem" and
>discussing its possible solutions, all this is hardly worth saying.
>Understanding it as a legal problem would presumably involve an understanding
>of how it is conceptualized in the pertinent legal system.>This is just
>handwaving of the sort I am trying to expose: the use of "conceptualized" is
>either a banality dressed up in a big word or tacitly accepts the mistaken
>view that legal analysis is a form of "conceptual analysis" - whereas what I
>am trying to explain is how legal analysis and argument are forms of
>problem-solving activity. My post is offering real examples to try to bring
>this out.
The second part from Omar is as follows:-
>*First, 'the balance of probabilities' is by no means an 'innocent' term, but
>one that has backgrounds in legal theory and practice. The understanding of
>the concept of 'balance of probabilities' in UK law might differ from the way
>it is understood in other fields, in other legal systems, in common parlance
>etc. For instance, the court has to decide whether or not something (is
>legally considered to have) happened or not. Thus its decisions cannot be
>expressed in terms of percentages of probability, as 'balance of probability'
>might be expressed in statistics. It either happened or did not happen. If
>doubts persist, the notion of 'burden of proof' is employed to deal with the
>(legal) situation. It seems also that UK courts hold an assumption that "the
>more serious the allegation the less likely it is that the event occurred."
>Such an assumption might not necessarily be shared by an engineer.>
We might rephrase this by saying that "the balance of probabilities", as a W3
legal construct, may differ from that same expression when used as a construct
in other fields of W3 activity [e.g. engineering]: but this, I suggest, is not
because of different "conceptualization" but because of differences in the
problem-solving activity and the attendant W3 history of the construct in the
field in question.
But again none of this helps solve the "legal problem" set. For the purposes of
that "legal problem", we may assume it is a problem that has not been decided
before, so there is nothing directly in the history or content of "the balance
of probabilities" as a W3 legal construct that we can take as providing a
ready-made solution. We have to face the problem as it is or as we see it - and
try to solve it.
From my POV, Omar's post corroborates how "conceptual"-speak and "conceptual
analysis" are idle and powerless in understanding legal reasoning and why we
need to focus on the specifics of the problem-solving activity in question.
Speaking of "conceptualization" is mere handwaving that does not advance to
what is the best solution to the "legal problem": even if we concede that
different legal systems might answer the problem differently, we are still left
with the question which of those answers are better or worse and in what ways.
These are substantive questions and need substantive analysis. Simply
handwaving about "conceptualization" gets us nowhere - because we're in the
real world, and the real world needs a real solution. And,whatever the
solution, it will have real consequences - for clearly (a) (b) and (c) appear
to be different consequences, with millions of euros at stake.
But to leave on a more positive note: Omar refers to something vital in the
second part of his post - "If doubts persist, the notion of 'burden of proof'
is employed to deal with the (legal) situation." This is very important: for
the solution to the "legal problem" depends on understanding the distinct
problem-solving role of the legal standard of proof [here "on the balance of
probabilities"] and the legal 'burden of proof', and understanding the
interaction between these two distinct problem-solving W3 constructs.
But, the question remains, what then is the best solution? [And the answer does
not depend on "conceptual analysis".]
Dnl
On Sunday, 15 March 2015, 6:15, Adriano Palma <Palma@xxxxxxxxxx> wrote:
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72.0pt;}#yiv3632223663 div.yiv3632223663WordSection1 {}-->Grice is worried, his
last unpublished lecture was titled, what is spernaza? Many were perplexed?
From: lit-ideas-bounce@xxxxxxxxxxxxx [mailto:lit-ideas-bounce@xxxxxxxxxxxxx]On
Behalf Of Paul Stone
Sent: 14 March 2015 22:04
To: lit-ideas@xxxxxxxxxxxxx
Subject: [lit-ideas] Re: Griceiana Believe it or not I actually still read
all the posts. On Mar 14, 2015 4:00 PM, "Omar Kusturica" <omarkusto@xxxxxxxxx>
wrote: Well, at least you are there, I was beginning to wonder if JL and I were
alone here. On Sat, Mar 14, 2015 at 8:43 PM, Paul Stone <pastone@xxxxxxxxx>
wrote: And they are STILL talking about him 15? Years later! I think Grice has
overtaken Willy Wagglesword as the most written about author in history...and
that's just counting jls' posts! Also contributing nothing On Mar 14, 2015 3:35
PM, "Mike Geary" <jejunejesuit.geary2@xxxxxxxxx> wrote: My favorite play on
Grice's name was Paul Stone's : "Jesus Grice!" I could hear him he crying out.
Ah, yes, long live his glory and long may his story be told. My philosophy
is quite simple: I don't know. And I probably never will know, but that's OK,
I'm having fun anyway. So, even though this message would not qualify for
publication here were there Relevance-Police monitoring this List, the case of
the world is that there are no Relevance-Police monitoring this list and so
this message will be posted to this List even though it makes no contribution
to philosophy or literature. Indeed, were this List the least bit
self-respecting, I would have been banned from posting anything here long ago.
But because it is not so monitored and I have not been so banned, then I have
been able not only to post, but to get a kick out of all the wild wording this
List lets loose like doves from a cage at some celebration. I salute all you
indefatigable word weavers out there. You've dressed my ignorance in some
mighty fine garments, I must say. And I did say. And you make me jealous that
I'm not so refined. My threads are all a-tangle. I snip them here. On Sat,
Mar 14, 2015 at 5:59 AM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote: "Grice" is
a Scots and northern English dialect word originally meaning
"young pig" (compare the Scandinavian gris, meaning "pig").
As it happens, that is just ONE possible explanation. The alternative one,
which I hold, and Grice held, is that it's Anglo-Norman, and related to the
colour 'grey', or 'gray', if you must. Cfr. Italian 'griso', 'grisatoio',
'grisetta'. *Well, I can see how Grice would have prefered that explanation.
It is not very pleasant to be associated with a type of swine, particularly one
that is: "voracious in the extreme, and excessively difficult to confine in
pasture or to fatten... also destructive and mischievous." And if the talk
about causality thoeries and implicatures went too far, neighbours could start
"grumbling about the behaviour of ... grice" and the courts might be forced to
move "confiscate particularly troublesome pigs, and to impose "hefty fines" on
their owners.[5]" " O.K. On Sat, Mar 14, 2015 at 11:20 AM,
Redacted sender Jlsperanza@xxxxxxx for DMARC <dmarc-noreply@xxxxxxxxxxxxx>
wrote: In a message dated 3/14/2015 3:10:51 A.M. Eastern Daylight Time,
omarkusto@xxxxxxxxx writes:
"Grice" is a Scots and northern English dialect word originally meaning
"young pig" (compare the Scandinavian gris, meaning "pig").
As it happens, that is just ONE possible explanation. The alternative one,
which I hold, and Grice held, is that it's Anglo-Norman, and related to the
colour 'grey', or 'gray', if you must. Cfr. Italian 'griso', 'grisatoio',
'grisetta'.
Now, puns abound. My favourite is Kemmerling's. He speaks of 'gricing' as a
special type of communication -- that disallows sneaky elements. The
opposite is 'disgricing'. Dennett has
grice
as a noun meaning
Conceptual intricacy.
"His examination of Hume is distinguished by erudition and grice."
Hence, griceful, adj. and griceless, adj.
"An obvious and griceless polemic."
pl. grouse: A multiplicity of grice, fragmenting into great details, often
in reply to an original grice note.
Grice should not be confused with Grice: both are philosophers but Grice*
taught at Oxford while Grice** taught at UEA/Norwich.
If you are doing a library (say) search you have to be careful: essays with
titles like "Grice's contractual approach to morality" may refer to the
UEA/Norwich Grice -- even if H. P. Grice held a quasi-contractual approach to
the conversational maxims, for example.
* Herbert Paul; ** Geoffrey Russell.
Cheers,
Speranza
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