[lit-ideas] Non-existence of 'Conceptual Analysis of English Law' Part I

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Sun, 1 Nov 2015 20:24:24 +0000 (UTC)

Let’s try tounderstand how “conceptual analysis”, a la philosophers, plays no
role in legalreasoning or in arriving at legal knowledge – plays no more role
in law than itplays in physics.

We may comeback to some of the assumptions that might give plausibility to the
view that“conceptual analysis” plays a role – even a central or vital one – in
legalreasoning. One such assumption is that law, unlike physics, is
fundamentally a _language-basedsystem_, and so legal knowledge is bound up with
the analysis of language; andthus bound up with “conceptual analysis”, as the
meaning of language isinextricably linked with the meaning of the concepts in
which language isexpressed. On close examination, this plausible line of
reasoning has next tono validity - for law is no more, or less, a
‘language-based system’ than is physics;the point of law and of physics (and
any other bodies of knowledge) is that theyattempt to solve certain problems;
and it is a myth that “conceptual analysis”[‘CA’] plays any vital role in these

What canhappen is that we can falsely credit CA with playing a role, even a
vital role– in fact we can do this for physics as well as law (Poincare’s
conventionalismtreats “e = mc2” as a kind of conceptual definition etc.). It is
the plausibility of this ‘false crediting’ thatunderpins and sustains the view
that CA plays a vital role in the developmentof human knowledge.
In postsover the last few years I have written at some length about a case,
Pilcher v Rawlins, to illustrate arange of points. One of these points is that
the right way to understand thelegal reasoning is not by analysing concepts but
by understanding ‘what is atstake’ in practical terms and then seeking the best
outcome given ‘what is atstake’ (with the purported ‘legal reasoning’ sometimes
a pale reflection of‘what is at stake’). Pilchermay be untypical in that ‘what
is at stake’ is barely touched on in thejudgment (as explained in my posts) but
it is entirely typical in that ‘what isat stake’ provides the best basis for
understanding the result. The question of‘what is at stake’ is equivalent to
the question “What is theproblem-situation?” and we are looking at legal
decisions and their attendantreasoning as attempts to solve problems.
We may saythe same of legal cases time and time again.

In postsregarding English discrimination law, it was explained that the same
wording“[treated] less favourably” has a very different effect in cases of
genderdiscrimination generally (where it means ‘treated worse than others of
adifferent gender’) than it does in the special case of pregnancy (where
itmeans ‘treated worse than is required to offset the inherent disadvantages
ofthe pregnancy’). This difference in effect is not arrived at by CA but
byunderstanding important differences between the two problem-situations -
suchas pregnancy involving inherent disadvantages in ways that (in the eyes of
thelaw) gender generally does not.
We may saythe same of R v Howe, forexample, where the English House of
Lords/Supreme Court decided that duress isnot a defence to murder. This
conclusion is not best explained by way ofanalysing the concepts of “duress”
and of “murder” and of “defence” and showingthat, analytically, these concepts
cannot be combined so that duress could be adefence to murder – the fact is
that it is conceivable and conceptuallypossible that duress could be a
defenceto murder. The Howe resultis because ‘what is at stake’ is not merely
whether genuine cases should beallowed to avail themselves of a defence of
duress (if this were the only issuethen surely they should) but that, if duress
were a defence, it could and wouldbe disingenuously raised, and, if raised,
might be very hard to rebut. Howe is not premised on beingdismissive of
scenarios where an innocent person acts under duress – forexample, where at
gunpoint a person is coerced to load a weapon that is thenused in murder (where
this would make them an accomplice and guilty of murderif they acted
voluntarily but commonsense would say such a person is not amurderer if they
load a gun under threat of their own murder). Still less is Howe premised on
being dismissiveof such scenarios on grounds of “conceptual analysis” or some
other figment.

Howe takes genuine cases of murder byduress seriously but is premised on the
view that we have adequatesafety-valves to deal with the genuine cases (so the
person forced at gunpointto load the murder weapon would not be prosecuted
because it is ‘not in thepublic interest’) and, given the adequacy of these
safety-valves, the rightpolicy to is deny duress is a defence to murder so as
not to give this as apotential escape-route for the most dangerous terrorists
and criminals. Ineffect, the rationale of the decision is that we can afford to
allow duress asa defence to crimes less than murder but in the case of murder
the price wouldbe too high given we have adequate safety-valves to protect
genuine cases. Thisprécis reflects ‘what is at stake’ in deciding whether or
not duress should beallowed as a defence to murder – though of course this
involves someunderstanding of the terms “murder”, “duress” and “defence”, it
does notinvolve “conceptual analysis” as philosophers understand it or
argumentsderived from “conceptual analysis”.

This précis,of ‘what is at stake’ as the actual rationale for Howe, may be
disputed but the parameters of such disputes donot give a foothold for saying
the rationale lies in CA. Disputes as to theactual rationale may arise, inter
alia,because ‘legal reasons’ as set out in judgments may not be comprehensive
or maybe a pale reflection of ‘what is at stake’, just as these public
pronouncementsmay be a pale reflection of the discussion behind closed doors.
There is alsothe potential and sometimes significant actual gap between the
W3.3 of thelegal problem-situation and the W3.2 of the judicial grasp of
thisproblem-situation and the W3.1 of the judicial expression of this grasp
inissued judgments.

On Friday, 30 October 2015, 19:00, "dmarc-noreply@xxxxxxxxxxxxx"
<dmarc-noreply@xxxxxxxxxxxxx> wrote:

In a message dated 10/30/2015 10:26:12 A.M. Eastern Daylight  Time, 
donalmcevoyuk@xxxxxxxxxxx quotes about 'substantive' vs.  'impeachment'
testimony in English law, and comments:

"These two [types of testimony] do not work because it is  easy to explain
how the effect of supporting testimony, or  cross-examination undermining
testimony, may validate a defence without  that validation depending on any
sort of "conceptual  analysis"".

I think we should distinguish here between at least two 'issues' (as the 
Americans would put it -- they seem to love 'an issue'):

(a) the value of a conceptual analysis of 'substantive' vs. 'impeachment' 

(b) McEvoy's 'issue': the validation of a defence depending on 'conceptual 

---- To (b), I would say that unless we provide an analysis for these two 
types of testimonies, or this or that paraphrase -- "supporting testimony"
vs.  "cross-examination undermining testimony" -- we may not even know what
we are  defending!

Geary says we need a conceptual analysis of 'defense', too. He gets 
especially irritated that Grice types it 'defence' (*).



* "It was Strawson!" -- Grice -- (Grice is referring to the fact that "In 
defence of a dogma" was co-written by Strawson and Grice -- "all mistakes
due to  Strawson").**

** A similar problem in the conceptual analysis of legal philosophy 
concerns H. L. A. Hart. A friend of mine spells his surname, H. L. A. Heart 
(Geary notes: "Well, a hart has a heart, but a heart does not have a hart, so 
your friend should know better [+> than she does]"). 

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  • » [lit-ideas] Non-existence of 'Conceptual Analysis of English Law' Part I - Donal McEvoy