[lit-ideas] Re: Legal Reasoning
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Wed, 11 Dec 2013 09:10:46 +0000 (GMT)
>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.>
Here's a suggestion on "argument structure", on which I have not studied any
"recent changes", drawn by analogy with Popper's views on the "argument
structure" in science. Bear in mind, Popper is the greatest theoriest of
knowledge since Kant and his views bear close and deep consideration.
There are philosophies that try to analyse science in terms of "argument
structures" like induction, abduction, deduction etc. and it is possible to try
to typograph others. And these "argument structures" can even be elevated or
discussed as if they constitute a method or methodology for investigation.
This is almost all make-believe or blather in Popper's view (as I am here
partly guessing it): even though he agrees there is such a thing as "argument
structure" and, in particular and most importantly, agrees that there are valid
and invalid "argument structures".
For Popper, we do not have any abductive method or inductive method. And while
science may be described as the 'hypothetico-deductive method', we do not use
this "method" to produce or create or invent theories in the sense in which
other's claim we use inductive method - we use this "method" to test, check,
and assess theories that we have already produced. That is:- "scientific
reasoning" is a checking or testing or assessing device, it is not a device
whereby we produce or create or invent scientific theories.
The production of theories is not a matter of "method" (and is beyond the
methodological analysis of science that Popper gives in his classic _LdF_):
many methods, and many things that hardly bear description as methods, may be
involved in producing theories - especially, in Popper's view, "imagination"
and insight. In this regard, World 3 plays a key role.
To understand, for example, how Einstein produced his theories, the best
explanation will not arise from looking at Einstein's "method" or "methods".
The best explanation will arise from considering the World 3 problem-situation
as Einstein saw it, and from understanding Einstein's thinking in terms of
attempted solutions to those problems. Once those solutions are produced, we
use the device of the hypothetico-deductive method' to test, check and assess
them.
The same may be said of "legal reasoning", turn and turn about. In the Pilcher
case, we understand the "legal reasoning" in terms of understanding a World 3
problem-situation, which as my posts indicate may have many aspects and even
signficant aspects that are not obvious at first sight [e.g. that in Pilcher a
key to the problem is the effect of any solution on cases, unlike Pilcher
itself, where there is no trust over the house).
Popper would (I think) say that you will learn much more about "legal
reasoning" by following the ins-and-outs of an actual example, like Pilcher,
where you are engaging with World 3 content pertaining to a legal problem and
its solution, than by reading some bogus academic account that tries to tell us
there is a method or particular kind of "legal reasoning" at work here.
We can take this a step further. Popper thinks deduction is valid and plays a
key role in science: but he does not think that to think validly we have to
think 'deductively' (we may arrive at something that is valid deductively by
non-deductive means, like insight or imagination), nor does he think we always
think deductively (clearly we don't), nor, and this is perhaps most important,
does he think deduction is a method that produces theories or World 3 content.
For no World 3 follows from the validity of deduction itself, at most some
World 3 content may be deduced from other World 3 content.
The example of Pilcher does involve deductive reasoning in the "legal
reasoning" but this deductive reasoning is there only to make links between
different aspects of World 3 content that constitute the Pilcher problem.
Donal
Theorist to the stars
On Tuesday, 10 December 2013, 17:16, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
wrote:
Pilcher was introduced to give a case with some depth as its "legal reasoning",
and so to give a basis for examining "legal reasoning" philosophically. In
particular, I hoped to use Pilcher as a sounding-board for examining whether
"legal reasoning" is best understood in realist or conventionalist terms: a la
debates whether "e = mc2" or "2 + 2 = 4" should be understood in realist terms
or conventionalist terms.
Given this, my heart sinks somewhat at the following:
>Thanks to D. McEvoy for bringing the Pilcher v Rawlins case, and his
description and improvement on a tutor's statement of the case:>
This may seem polite, and if my analysis is mistaken and the tutor's correct
then it is way too generous: but to say my analysis seeks to be an "improvement
on a tutor's" is like saying "2 + 2 = 4" seeks be "improvement" on "2 + 2 = 17"
or perhaps (given how specious and spurious is the tutor's account) "2 + 2 =
banana".
Pilcher is not an example where I offer an analysis as a mere alternative or
"improvement": my analysis is offered as correct and, in the second post, it is
used to show how the tutor's is incorrect. There is no point hiding this - it
may offend a kind of academic politesse to speak of correct and incorrect, and
it may tread on the toes of a conventionalist. But my posts were very clear
that there is a litany of error in the tutor's account, no two ways about it:
e.g. that Pilcher is based on "constitutional law", that Pilcher belongs with
cases where BFPs buy from non-owners, that a BFP cannot be expected to detect a
fraudulent non-owner in the same way that they cannot be expected to detect a
'hidden' trust. Etc. These are not issues to be treated as mere matters of
subjective opinion, like whether ice-cream tastes nice, but as questions of
fact to which there are (or at least may be) right and wrong answers.
Further, in the Pilcher example, the rightness and wrongness is (or so I argue)
fairly clear-cut.
If I had explained why "2 + 2 = 4" is correct as against "2 + 2 = 5", as a
prelude to perhaps discussing whether "2 + 2 = 4" should be understood as a
mere convention of sorts or in more realist terms, I might despair if, after
all the explanation, the reaction was merely to thank me for that "improvement"
on
"2 + 2 = 5".
Donal
FFS again
London
On Tuesday, 10 December 2013, 14:45, "Jlsperanza@xxxxxxx" <Jlsperanza@xxxxxxx>
wrote:
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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