[lit-ideas] Re: Law as problem-solving with W3 content
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sun, 15 Mar 2015 07:52:43 +0100
Donal writes:
Legal materials may be difficult to follow, but when we understand a legal
problem it is rarely hard to explain (a) the character of the problem (b)
the character of possible solutions (c) the relative merits of the possible
solutions. In the light of (c) especially, we can better understand the
legal reasoning of courts which might otherwise seem opaque.
(snip)
1) A ship 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 the insurance 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.
*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.
In this civil case, the judge must *as a matter of law* decide on “the
balance of probabilities”.
*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.
After hearing each version of how the fire started, the judge finds that
neither version is probable but that the insurer’s version is even less
probable than the ship owner’s.
Given this, should the judge *as a matter of law*:
(a) Find for the ship-owners/plaintiffs?
(b) Find for the insurers/defendants?
(c) Find for neither?
*I don't know, but that is not surprizing since I am not a UK judge. The
judge is qualified to conteptualize the resulting legal situation in terms
of UK law, and thus to establish which of these legal solutions (if any)
would apply.
O.K.
On Sat, Mar 14, 2015 at 8:43 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
wrote:
> Without writing a book, I would like to convey some understanding of law
> as problem-solving with W3 content.
>
> How best to go about this isn’t clear-cut. This post will try to work with
> a sketch made up only of clear lines of thought, uncluttered with the kind
> of complicating detail that afflicts many law reports and other legal
> materials.
>
> Legal materials may be difficult to follow, but when we understand a legal
> problem it is rarely hard to explain (a) the character of the problem (b)
> the character of possible solutions (c) the relative merits of the possible
> solutions. In the light of (c) especially, we can better understand the
> legal reasoning of courts which might otherwise seem opaque.
>
> Among the many things this discussion hopes to bring out, is how
> “conceptual analysis” plays next to no role in legal reasoning:- even
> though we *could* strive to account for legal reasoning by way of
> “conceptual analysis”, it is in fact *the character of the problem, and
> its possible solutions,* that drives legal reasoning and decision-making.
>
> For those still interested then, we may start with two legal problems.
>
> (1) A ship 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 the insurance 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
> “the balance of probabilities”. After hearing each version of how the fire
> started, the judge finds that neither version is probable but that the
> insurer’s version is even less probable than the ship owner’s.
>
> Given this, should the judge *as a matter of law*:
> (a) Find for the ship-owners/plaintiffs?
> (b) Find for the insurers/defendants?
> (c) Find for neither?
>
> My contention is that the conclusion we should reach here cannot be
> decided by mere “conceptual analysis” of the notion of “the balance of
> probabilities”. It depends instead on understanding the character of the
> problem at issue and the relative merits of the possible solutions (a) (b)
> or (c).
>
> It is true that having decided between (a) (b) or (c), we *could* dress
> up our justification by claiming it follows from a “conceptual analysis” of
> the notion of “the balance of probabilities” – but the truth would be that
> this “conceptual analysis” would itself merely be one of a number of
> logically possible interpretations of the term “the balance of
> probabilities”. What is merely one of a number of logically possible
> interpretations lacks the necessity that would be essential to a genuine
> “conceptual analysis” – for a genuine “conceptual analysis” would be one
> that rests on the only logically possible analysis of the concepts
> involved. (It may also be shown in due course that the notion of “the
> balance of probabilities” – though important - is not itself sufficient to
> characterise the problem at issue.)
>
> (2) A Tribunal is to make a decision on two issues – Issue I and Issue
> II. The plaintiff must succeed on both issues to win his case.
>
> At the end of the case, the Tribunal announces its decision orally
> – that while the Tribunal finds the plaintiff has proved his case on Issue
> I, the Tribunal does not find that he has proved his case on Issue II.
> Subsequently, as required by law, the Tribunal sends out its written
> “Extended Reasons” – but in these “Extended Reasons” the Tribunal make
> clear that the plaintiff fails because the plaintiff did not succeed in
> proving his case on Issue I.
>
> On appeal, and given the conflict between the Oral Decision and the
> subsequent “Extended Reasons”, should the Court of Appeal rule *as a
> matter of law*:
> (a) The Oral Decision stands as the Tribunal’s decision (and the
> subsequent “Extended Reasons” are without any legal effect).
> (b) The “Extended Reasons” stand as the Tribunal’s decision (and the
> prior Oral Decision is without any legal effect) .
> (c) Given the 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 conclusion we should reach here (likewise)
> cannot be decided by mere “conceptual analysis” of any relevant notion
> (such as “res judicata”). It depends instead on understanding the character
> of the problem at issue and the relative merits of the possible solutions
> (a) (b) or (c).
>
> My central contention is that when these substantive merits are understood
> we will best understand why these points of law were decided as they were
> (by, in these examples, the English Court of Appeal).
>
> And “conceptual analysis” has next to nothing to do with it: a Popperian
> approach to understanding legal reasoning is right because Popper’s theory
> of knowledge is right.
>
> So, if you are willing, you can be the 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 “conceptual analysis” gets you here?
>
> Donal
> London
>
>
> 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]
> <http://en.wikipedia.org/wiki/Grice#cite_note-NewScientist2006-5>" "
>
> 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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