[lit-ideas] Re: Legal Reasoning

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Thu, 12 Dec 2013 10:47:07 +0000 (GMT)

>The terms 'realism' and 'conventionalism' have been used variously. I  
don't. I see PLATONISM as a realist philosophy of mathematics. On the other  
hand, Ayer's isn't. In "Language, Truth, and Logic", he does regard things  like

2 + 2 = 4

as analytic a priori -- contra Kant who saw it as synthetic a priori.  
McEvoy constantly mentions the greatness of Popper as 'the best' after Kant, 
this may invite as to what Popper thought of the 'synthetic a priori'. 
Ayer  thought it null. >

Yes, there are different versions of 'realism' and 'conventionlism' and some 
are perhaps not that far apart: for example, there is a Wittgensteinian version 
of 'conventionalism' that is perhaps not very far way from a Popperian version 
of 'realism' (for Popper's version of 'realism' acknowledges there are many 
'conventionalist' elements in knowledge): a main difference is perhaps highly 
abstract - that Popper would say our knowledge may correspond in a realist or 
truth-like way to reality as reality is 'in itself' (though this correspondence 
can never be known or justified, but can only be meta-guessed as part of 
'metaphysical realism'), whereas Wittgenstein might view this kind of claim as 
going beyond anything we can sensibly say or show.

The Popperian view of "2 + 2 = 4", its epistemic status, of course raises 
important issues (as does any philosophical view of it), as important as the 
Popperian view of "e = mc2". And while Popper's views on science are thought to 
be well-known, there are important aspects of his view of "e = mc2" that are 
not well-known - it is well-known that Popper takes "e = mc2" to be falsifiable 
but it is not well-known how Popper locates "e = mc2" within a framework of 
'metaphysical realism'. It is well-known that Popper is a non- even 
anti-inductivist, but it is not well-known how 'metaphysical realism' is a 
crucial part of his alternative.

While such a discussion might seem a digression in terms of "legal reasoning", 
not only is it important in itself but I think it is a discussion that might 
prepare the way to discussing "legal reasoning".

But that's perhaps for other posts. Here I'd like to end with a 'realist'-type 
challenge to anyone, like JLS, who seems to think the two analyses posted of 
Pilcher do not obviously raise questions of fact with right or wrong answers.

Pilcher is either a case based on "constitutional law" or it is not. The tutor 
claims it is (his claim based, I suggest, on mistaking the court's conclusion 
that it lacks jurisdiction for the basis of its decision). I claim it is not 
(and my posts contain many arguments in support). Can JLS explain how both 
claims can be true? And can JLS, or anyone, explain how the tutor is right by 
specifying what it is in "constitutional law" that determines the Pilcher 
result? Bear in mind, lawyers do not get results by making claims about the 
"law" as an unspecified generality but only by specifiying the "law" they rely 
on. So: specify. If you cannot, then by any fair standard (which may not be the 
standard of the dogmatic or the philosopher), you have failed in your claim. 
And your failure is fairly clear-cut, just as you would understand your 
lawyer's failure as fairly clear-cut if they claimed to a court "We rely on the 
law here and ask the court to..." and the
 court interjected "What law, specifically?" and the lawyer said "None 
specifically - just the law."


On Wednesday, 11 December 2013, 15:36, "Jlsperanza@xxxxxxx" 
<Jlsperanza@xxxxxxx> wrote:
My last post today, but I thought of bringing in the sophists in. I'm not  
sure how much deals with them in accounts of legal reasoning, but they 
should  figure large. This statement at the end of the passage quoted below 
the  Wikipedia entry for "Sophist" should be clear enough:

"In addition, Sophists had great impact on the early development of law, as 
the sophists were the first lawyers in the world. Their status as lawyers 
was a  result of their extremely developed argumentation skills. -- vide: 
Martin,  Richard. "Seven Sages as Performers of Wisdom." Cultural Poetics in 
Archaic  Greece. New York: Oxford, 1988. 108–130."

And of course, if there is a thing as philosophical approach to legal  
reasoning, the root of it must be found in the philosophers's interactions with 
the sophists.

Oddly, I also read, in Rome, the sophist's role was minimised:

"They orated over topics like poetry and public speaking. They did not  
teach debate or anything that had to do with politics because rhetoric was  
restrained due to the empirical government’s rules -- vide: McKay, Brett 
(2010).  Classical Rhetoric 101: A Brief History)".

Which is a bit ambiguous in that, strictly, the origin of philosophy in  
Rome can be traced to a famous episode where a group of Greek philosophers  
argued one day _for_ justice and the next day _against_ it, which the Romans  
found 'ambiguous'.



Fom Wikipedia:

"The first sophists prepared Athenian males for public life in the polis by 
teaching them how to debate through the art of rhetoric. The art of 
persuasion  was the most important thing to have a successful life in the fifth 
century  Athens social commonplace when rhetoric was in its most important 
stage. The  sophists' rhetorical techniques were extremely useful for any young 
nobleman  looking for public office. The societal roles the Sophists filled 
had important  ramifications for the Athenian political system at large. 
The historical context  provides evidence for their considerable influence, as 
Athens became more and  more democratic during the period in which the 
Sophists were most  active."
"Athens was a flourishing democracy before the Sophists started  their 
teachings there. The Sophists certainly were not directly responsible for  
Athenian democracy, but their cultural and psychological contributions played 
important role in its growth. They contributed to the new democracy in part 
by  espousing expertise in public deliberation, since this was the 
foundation of  decision-making, which allowed and perhaps required a tolerance 
the beliefs  of others. This liberal attitude would naturally have 
precipitated into the  Athenian assembly as Sophists acquired increasingly 
"Continuous rhetorical training gave the citizens of Athens "the ability to 
create accounts of communal possibilities through persuasive speech". This 
was  extremely important for the democracy, as it gave disparate and 
sometimes  superficially unattractive views a chance to be heard in the 
In addition, Sophists had great impact on the early development of  law, as 
the sophists were the first lawyers in the world. Their status as  lawyers 
was a result of their extremely developed argumentation skills -- vid:  
Martin, Richard. "Seven Sages as Performers of Wisdom." Cultural Poetics in  
Archaic Greece. New York: Oxford, 1988. 108–130. 

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