[lit-ideas] Law as problem-solving with W3 content
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sat, 14 Mar 2015 19:43:29 +0000 (UTC)
Without writing a book, I would like to convey someunderstanding of law as
problem-solving with W3 content. How best to go about this isn’t clear-cut.
This post willtry to work with a sketch made up only of clear lines of thought,
uncluttered withthe kind of complicating detail that afflicts many law reports
and other legalmaterials. Legal materials may be difficult to follow, but when
weunderstand a legal problem it is rarely hard to explain (a) the character
ofthe problem (b) the character of possible solutions (c) the relative merits
ofthe possible solutions. In the light of (c) especially, we can
betterunderstand the legal reasoning of courts which might otherwise seem
opaque. Among the many things this discussion hopes to bring out, ishow
“conceptual analysis” plays next to no role in legal reasoning:- even thoughwe
could strive to account for legalreasoning by way of “conceptual analysis”, it
is in fact the character of the problem, and its possible solutions, that
driveslegal reasoning and decision-making. For those still interested then, we
may start with two legalproblems. (1) Aship is badly damaged by a fire. The
insurers refuse to pay the owners,claiming that the fire was started
deliberately in a way that falls outside theinsurance cover. The owners sue the
insurers under the contract of insurance,seeking to prove that the fire started
by accident as covered by the insurance. In this civil case, the judge
must as a matter of law decide on “thebalance of probabilities”. After hearing
each version of how the fire started,the judge finds that neither version is
probable but that the insurer’s versionis even less probable than the ship
owner’s. Given this, should the judge as a matter of law:(a) Find for
theship-owners/plaintiffs?(b) Find forthe insurers/defendants?(c) Findfor
neither? My contention is that the conclusionwe should reach here cannot be
decided by mere “conceptual analysis” of thenotion of “the balance of
probabilities”. It depends instead on understandingthe character of the problem
at issue and the relative merits of the possiblesolutions (a) (b) or (c). It is
true that having decidedbetween (a) (b) or (c), we coulddress up our
justification by claiming it follows from a “conceptual analysis”of the notion
of “the balance of probabilities” – but the truth would be thatthis “conceptual
analysis” would itself merely be one of a number of logicallypossible
interpretations of the term “the balance of probabilities”. What ismerely one
of a number of logically possible interpretations lacks thenecessity that would
be essential to a genuine “conceptual analysis” – for agenuine “conceptual
analysis” would be one that rests on the only logicallypossible analysis of the
concepts involved. (It may also be shown in due coursethat the notion of “the
balance of probabilities” – though important - is not itselfsufficient to
characterise the problem at issue.) (2) A Tribunalis to make a decision on
two issues – Issue I and Issue II. The plaintiff mustsucceed on both issues to
win his case. At the end of the case, the Tribunalannounces its decision
orally – that while the Tribunal finds the plaintiff hasproved his case on
Issue I, the Tribunal does not find that he has proved hiscase on Issue II.
Subsequently, as required by law, the Tribunal sends out its written“Extended
Reasons” – but in these “Extended Reasons” the Tribunal make clearthat the
plaintiff fails because the plaintiff did not succeed in proving hiscase on
Issue I. On appeal, and given the conflictbetween the Oral Decision and the
subsequent “Extended Reasons”, should theCourt of Appeal rule as a matter of
law:(a) TheOral Decision stands as the Tribunal’s decision (and the
subsequent “ExtendedReasons” are without any legal effect).(b) The
“ExtendedReasons” stand as the Tribunal’s decision (and the prior Oral Decision
iswithout any legal effect) .(c) Giventhe conflict between them, neither the
Oral Decision nor the “Extended Reasons”stand as the Tribunal’s decision i.e.
neither is with any legal effect. My contention is that the conclusionwe should
reach here (likewise) cannot be decided by mere “conceptual analysis”of any
relevant notion (such as “res judicata”). It depends instead onunderstanding
the character of the problem at issue and the relative merits ofthe possible
solutions (a) (b) or (c). My central contention is thatwhen these substantive
merits are understood we will best understand why thesepoints of law were
decided as they were (by, in these examples, the EnglishCourt of Appeal). And
“conceptual analysis” hasnext to nothing to do with it: a Popperian approach to
understanding legalreasoning is right because Popper’s theory of knowledge is
right. So, if you are willing, you can bethe judge: have a think as to which is
best in I and II – (a) (b) or (c)? And,while thinking about that, perhaps also
ask yourself how far any kind of “conceptualanalysis” gets you here?
DonalLondon
On Saturday, 14 March 2015, 19:35, 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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