[lit-ideas] Re: Law as prob-solving
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sun, 15 Mar 2015 15:19:25 +0100
Well, Donal has decided to introduce the legal notion of "finding for
neither" that has hitherto been unknown in jurisprudence, so I thought that
some clarification of what is meant might be in order. If it is decided
that there is no court that has jurisdiction in the matter, then the second
part of my comment stands, namely that the practical effect is the same as
ruling for the defendant. Considering both the substance and the tone of
DNL's recent comments, I think that I will likewise return the ruling that
the matter is outside of my jurisdiction, and will not be bothered by it
further.
O.K.
On Sun, Mar 15, 2015 at 3:00 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
wrote:
> Omar is making hard work of irrelevancies while getting no nearer to
> advancing arguments as to why (a) (b) or (c) should be the preferred
> option: my underlying point being that such arguments will be substantive
> and not results of "conceptual analysis".
>
> Having introduced queries that tend to lead us off the beaten track, Omar
> then makes heavy weather of answers given to his queries:-
>
> >Well, if the court decides that the matter is outside its jurisdiction,
> then presumably it will go to another court that has jurisdiction.>
>
> No - absolutely wrong: there are many matters which are beyond the
> jurisdiction of any court. *Pilcher* is an example: the Court of Equity
> was the only court with possible jurisdiction to intervene on the
> beneficiary's behalf: once "non-suited" there, the beneficiary had nowhere
> else to turn.
>
> >That is not "finding for neither.">
>
> The sense in which *Pilcher* is a "finding for neither" has been
> explained and is both important and correct - it would be incorrect to say
> the court in *Pilcher* gave judgment for the defendant or found in his
> favour.
>
> What *may be said* is that the *Pilcher *court, in finding it lacks
> jurisdiction, makes a finding that does work in favour of the defendant
> (because the plaintiff has nowhere else to turn): but that is a different
> point and beside the point. It *might* also be said that the court finds
> it lacks jurisdiction because it takes a favourable view of the defendant's
> position: but that too is a different point and beside the point. [But only
> '*might*', for this second point is dubious: it has been explained that
> the 'lack of jurisdiction' is not because the purchaser is "Equity's
> darling", and favourably viewed, but because protecting the beneficiary
> would be a step too far in a *Pilcher* situation when viewed in terms of
> the 'public interest'. The purchaser as such is no more favourably viewed
> than the beneficiary: they are both equally innocent victims of the
> fraudster; it is the wider 'public interest' that decides who should lose].
>
> >Unless the matter is to go from one court to another indefinitely,
> finally some court will have to find in favour of one party or the other.>
>
> No - absolutely wrong [see above]: and we must distinguish the prior
> question (1) 'Is this issue within the remit of the court?' from (2) (which
> only arises if the answer to (1) is 'yes') - (2) 'On the issue (which is
> within the remit of the court) does the court find in favour of the
> plaintiff or the defendant?' Where issues are not within the remit of the
> court, the court does not make findings on those issues in favour of either
> party - it finds "for neither". [See above.]
>
> >Besides, if the court evades responsibility in some way or other, the
> effect in the case at hand is the same as ruling in favor of the insurance
> company, i.e. the insurance claim will not be paid.>
>
> Finding that a case is beyond its jurisdiction is not the same as "the
> court evades responsibility": on the contrary, all courts have an important
> responsibility not to exceed their jurisdiction.
>
> As explained above, the fact that a lack of jurisdiction favours one party
> rather than the other, does not make a 'finding of lack of jurisdiction'
> into a 'finding in favour of one party or the other' - it is a "finding for
> neither" in the crucial sense explained [if the *Pilcher *defendant/purchaser
> had taken action in the Court of Equity for a declaration in his favour *i.e.
> *if the *Pilcher* purchaser were the plaintiff rather than defendant to
> the action, the *Pilcher* purchaser would also have been "non-suited" for
> lack of jurisdiction]. What Omar is saying obliterates the key distinction
> drawn between being "non-suited" and where "judgment is given for" one
> party or the other: this has been explained several times, but Omar wants
> to talk as if it is a distinction without a difference. Yet far from being
> some question of semantics, it is a distinction with a difference.
>
> >Whether it is not paid because the court decided in their favour or
> because the court decided the matter is outside its jurisdiction surely
> makes no difference in "the real world out there" or anywhere for that
> matter.>
>
> Yes it does make a difference: if the court lacks jurisdiction on an
> issue, then any potential plaintiff knows not to bother the court on that
> issue; whereas if the court finds for the defendant on an issue in one case
> (within its jurisdiction), a plaintiff may yet succeed on the same issue in
> another case. That's a massive difference.
>
> If this were the real world of courts, a costs-order against Omar might be
> in order for frivolous, vexatious and time-wasting arguments.
>
> It's amazing that so much heavy weather can be made of so many side-issues
> while no headway is made at all on advancing arguments as to why, in I and
> II, the court should opt for (a) (b) or (c). I mean: it's not that
> difficult to stay on point and not get lost in side-issues, *is it*?*
>
> D
> *A question many people would, of course, ask about lawyers.
>
>
>
> On Sunday, 15 March 2015, 11:06, Omar Kusturica <omarkusto@xxxxxxxxx>
> wrote:
>
>
> Well, if the court decides that the matter is outside its jurisdiction,
> then presumably it will go to another court that has jurisdiction. That is
> not "finding for neither." Unless the matter is to go from one court to
> another indefinitely, finally some court will have to find in favour of one
> party or the other. Besides, if the court evades responsibility in some
> way or other, the effect in the case at hand is the same as ruling in favor
> of the insurance company, i.e. the insurance claim will not be paid.
> Whether it is not paid because the court decided in their favour or because
> the court decided the matter is outside its jurisdiction surely makes no
> difference in "the real world out there" or anywhere for that matter.
>
> O.K.
>
> On Sun, Mar 15, 2015 at 11:55 AM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
> wrote:
>
> (Blocked elsewhere)
> >Perhaps if the question were more formulated more clearly, there would be
> a better chance of answering it. Donal was asking:
>
> 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?>
>
> What's "unclear" about this "formulation"? Perhaps if the allegation that
> it could be formulated "more clearly" were itself "more clearly"
> formulated, then it would be easier to see what is unclear about this.
>
> As to the role of "burden of proof", that was not made clear admittedly,
> and it is this: if either side fails to satisfy the standard of proof [i.e.
> prove their case on "the balance of probabilities"], then the case is
> decided according to the burden of proof - which in this case, as in most
> cases, rests on the plaintiff. I hope this clearly answers the very last
> part of Omar's reply:
>
> >*On the face of it would seem that c) is reasonable, but what would it
> mean in this legal context to "find for neither" ? I am not familiar with
> legal decisions in which the court "finds for neither." Also, we haven't
> been informed how the burden of proof was allocated here.>
>
> As to the first part (re what would it mean in this legal context to "find
> for neither"), *Pilcher *is a case where the court does not find for the
> defendant and so does not give judgment for the defendant but instead
> "non-suits" the plaintiff for lack of jurisdiction - this "lack of
> jurisdiction" means the case is outside its remit and so, in this sense,
> the court "finds for neither" but finds rather that the issue is beyond its
> powers.*
>
> Dnl
> *However, my posts explained how this "lack of jurisdiction" is not the
> basis for the *Pilcher *decision but a conclusion that follows from the
> decision that it would not be inequitable for the good faith purchaser to
> keep the property outright: and that the reasons for *that *decision are
> not constitutional/jurisdictional at all (*pace* the Oxford tutor) but
> *substantive
> ones relating to the specifics* of the "legal problem" *e.g.* the
> negative consequences if the purchaser did not take free of the trust and
> the fact the trust is better placed than the purchaser to prevent the fraud
> that creates the problem *etc.*
>
>
> On Sunday, 15 March 2015, 6:15, Adriano Palma <Palma@xxxxxxxxxx> wrote:
>
>
> 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]
> <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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