[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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