[lit-ideas] Legal Reasoning
- From: Jlsperanza@xxxxxxx
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Tue, 10 Dec 2013 09:45:08 -0500 (EST)
Thanks to D. McEvoy for bringing the Pilcher v Rawlins case, and his
description and improvement on a tutor's statement of the case:
In a message dated 12/10/2013 7:28:13 A.M. Eastern Standard Time,
donalmcevoyuk@xxxxxxxxxxx writes:
the Pilcher result is practically inevitable and is in the interests of
justice. As shown, it is specious and spurious to claim:- (a) that Pilcher is
part of “the only (possible) unjust position” because it is ‘inconsistent’
that the BFP keeps the house in Pilcher when they would not if they
bought from a non-owning fraudster; (b) that the result in Pilcher “comes from
constitutional law” because this renders the court powerless to intervene.
Both bogus claims reflect an impoverished, misguided ‘academic’ approach
(as if in Pilcher the court looked at some “constitutional law” and
concluded ‘Dearie me, we are powerless here’, or as if courts should work to
some
specious academic sense of ‘consistency’, which T bases myopically on the
BFP’s viewpoint). This kind of academic approach is blind to the
significant practicalities that actually most govern legal decision-making,
which in
Pilcher are encapsulated by the practical ‘policy’ issues at (2).
----
I would like to address a more general topic. The 'must'.
In "Aspects of Reason and Reasoning", that Grice delivered first in
Stanford (as the Kant lectures) and then in Oxford (as the Locke lectures), he
is
trying to bridge a gap between the theoretical 'must' and what he calls the
'practical' (and where I would fit the 'legal') "must".
He is thinking of reasoning or arguing.
In a previous recent post I referred to Toulmin as having proposed a
different approach to arguing (simpliciter) as based on legal (or should we say
judge's) reasoning, rather than what he regarded as a restricted axiomatic
mathematical type of reasoning that best applies to the a-priori.
In discussions of the Pilcher v. Rawlins then, we could concentrate on the
judge's decision as being the consequence (out of a set of premises)
yielding a 'must':
"Bona Fide Purchaser MUST win".
The technicalities of this must should not be too serious. In general,
modal logicians use two operators: a square
[]
to represent
Necessarily
and a diamond
<>
to represent
Possibly
A further complication may result in the grammatical fitting of the symbol
and its vernacular expression:
cfr.
Bona Fide Purchaser MUST win
[] Wp
where 'W' is the predicate for 'win', and 'p' stands for the 'subject' --
bona fide purchaser. The modality ("must"), then, applies to the
'proposition' -- the bona-fide purchaser wins, necessarily.
I would argue that cases like the one discussed by McEvoy may shed light
(or not) on the distinctions often (but not THAT often) made between 'moral'
reasoning and 'legal' reasoning. Or not!
Cheers,
Speranza
ps. I note that there does not seem to be a Wikipedia entry for 'legal
reasoning'. However, it is listed as a category. It advises to "See also
categories: Law and morality, Authority, and Legal concepts".
Wikipedia goes on to say that "the following 34 pages are in this category
[of "LEGAL REASONING"], out of 34 total. This list may not reflect recent
changes (learn more)." I listed them below to check, e.g., which one applies
to Pilcher v Rawlins and perhaps discuss the argument structure more
closely. Or not.
Categories: Philosophy of law -- Reasoning
A
1 Adverse inference
2 Arbitrariness
3 Argument in the alternative
4 Argumentation theory
5 Argumentum a contrario
C
6 Casuistry
7 Causation (law)
8 Commanding precedent
9 Contra principia negantem non est disputandum
10 Contradictio in adjecto
D
11 Deliberation
12 Discourse ethics
13 Distinguishing
E
14 Egalitarian dialogue
15 Eo ipso
I
16 Ipse dixit
17 Ipso facto
18 Ipso jure
J
19 Judicial interpretation
K
20 Kuching Declaration
L
21 Legalism (Western philosophy)
M
22 Moral certainty
23 Mutatis mutandis
P
24 Precedent
25 Prima facie
26 Probable cause
27 Proof (truth)
R
28 Reasonable doubt
29 Reasonable person
30 Right of reply
S
31 Socratic questioning
32 Statutory interpretation
33 Straight face test
34 Substantial truth
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