[lit-ideas] Re: Law as prob-solving
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sun, 15 Mar 2015 17:39:18 +0000 (UTC)
Having little of value to contribute is the real reason Omar should desist from
bothering others with his thoughts.
>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.>
This is a re-iteration by Omar that is in plain ignorance of what has been
explained and clarified: while "finding for neither" is not some legal term of
art, it is a "legal notion" that is well-known to jurisprudence and which
underpins why in a case like Pilcher the court rightly non-suits the plaintiff
without giving judgment for either the defendant or the plaintiff [hence
"finding for neither"]. Thus the court does not make any "finding" in respect
of any issue within its jurisdiction but instead decides the issue itself is
beyond its jurisdiction. Omar writes as if he knows all about what is "unknown"
in "jurisprudence" when he cannot seemingly grasp a basic legal distinction
that is well-known in jurisprudence, such as between finding for one party
against another on an issue and deciding that the issue itself is not within
the jurisdiction of the court.
>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.>
The comment does not stand, for it is not the identical "practical effect": for
example, a defendant in a civil case has a right to present their case in
relation to a matter within the court's jurisdiction - and may desire to do so
- but they have no such right in relation to a matter that is outside the
court's jurisdiction. This fundamental difference, in the defendant's right to
present a case, is one "practical effect" of the difference between a decision
based on lack of jurisdiction and one based on the court having jurisdiction.
If Omar knows "jurisprudence" as well as he thinks, he will easily find this
"practical effect" is also well-known within "jurisprudence".
What, I suggest, may be "unknown in jurisprudence" is a way to validly address
which of several legal options [(a) (b) (c)] should be preferred, by engaging
only in half-baked queries and assertions that do not bear on the merits of the
options. But Omar may know better of course.
Dnl
On Sunday, 15 March 2015, 14:19, Omar Kusturica <omarkusto@xxxxxxxxx>
wrote:
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]" " 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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