[lit-ideas] Re: Legal Reasoning

  • From: Jlsperanza@xxxxxxx
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Thu, 12 Dec 2013 09:09:30 -0500 (EST)

In a message dated 12/12/2013 5:47:15 A.M.  Eastern Standard Time, 
donalmcevoyuk@xxxxxxxxxxx writes:
"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.""  

Thanks for the clarification on the conventionalist-realist divide, or  
shall we say, conventionalist/non-conventionalist divide, or 
realist/non-realist  divide.
 
I would go, for the sake of the argument, with a 'realist' interpretation,  
in McEvoy's words:
 
"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...)"
 
What I would add here is what, with Grice, we may see as 'value-oriented'.  
Grice is VERY serious about 'value-oriented'. He takes a poem by Lewis  
Carroll,
 
The time has come, the Walrus said,
To talk of many things:
Of  shoes--and ships--and sealing-wax--
Of cabbages--and kings--
And why the  sea is boiling hot--
And whether pigs have wings.
 
He asks his audience, in my words, whether we have actually focuses on how  
many of the items mentioned there are 'value-oriented'. As he lists them, 
Grice  notes that
 
'shoe'
 
'ship'
 
'sealing-wax'
 
'cabbage'
 
and
 
'king'
 
are ALL value-oriented (He grants that 'cabbage' is controversial). He then 
 proceeds to note that 'sentence' and 'reasoning' are value-oriented, too.
 
The distinction fact-value then interacts with McEvoy's realism. I, with  
Grice and Putnam, follow the idea that there IS a distinction between fact 
and  value. To rewrite McEvoy's claim, on two counts:
 
Count 1:
 
McEvoy:
 
"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...)"
 
I would re-define that to read:
 
'realist' or truth-like way to THE FACTS".
 
Indeed, following Grice (Ways of Words) I would substitute 'true', which is 
 usually ambiguous, with 'factual satisfactoriness', which is a Tarskian 
concept  rather (truth as satisfactoriness).
 
Count 2: 
 
McEvoy:
 
"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."
 
Since we have restricted 'realism' to FACTS -- unless we are S. W.  
Blackburn, the once Pembroke, Oxon, philosopher -- and think of MORAL realism 
--  
we should perhaps redefine the above.
 
'Right' and 'wrong' pertain to 'value' rather than 'fact' aspects.
 
And I would go on to admit that in the Pilcher v. Rawlins case, as in any  
piece of a judge's decision worth the label 'jurisprudential', there is an  
element of 'value' -- at least one premise must, however, indirectly, refer 
to a  'principle', which is not a _matter of FACT_, but a value-assumption.
 
This may refer to Grice's views on 'just'. In WoW (the Socrates essay), he  
considers Socrates's (and neo-Socrates's) use of 'just' (or 'fair' -- but 
cfr.  'correct', 'valid') versus the uses by Thrasymachus (or 
neo-Thrasymachus). He is  thinking of a polemic like Rawls vs Nozick, or Hart 
vs. Dworkin. 
He ends up with  subindexing:
 
"The decision in the Pilcher vs. Rawlins case was just-1 but perhaps not  
just-2".
 
Seeing that we are dealing with a reasoning that is admittedly not JUST  
deductive, there is always room, to use McEvoy's words in previous posts, for  
'counterexample'.
 
In previous posts to Lit-Ideas on "Popperian Jurisprudence", McEvoy had  
used the Pilcher vs. Rawlins as a case where a counterexample can always be  
provided to 'refute' the judge's decision -- changing assumptions slightly, 
as  to considerations regarding the bona-fide purchaser, the trustee, etc. --.
 
This does not mean that there may not be something 'wrong', or 'wrong-2',  
in the tutor's description of the case.
 
McEvoy's re-interpretation of the Pilcher vs. Rawlins is what I call  
'consequentialist', in that it arrives at a 'right' or 'just' or 'valid' or  
'fair' conclusion (of a piece of premise-full legal reasoning) on the part  of 
the judge, in terms of this or that _consequence_, and was pointing out some  
problems with that, as viewed by B. A. O. Williams (Wikipedia entry on  
consquentialism). 
 
On top of that, I was arguing that the distinction between legal  
case-based reasoning, while defined in opposition to principle-based legal  
reasoning, is more one of focus than criteria, in that at least one centrally  
value-oriented principle (even judged in terms of moral consequentialism) seems 
 
to be at stake -- or not.
 
Cheers,
 
Speranza
 
 
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