[lit-ideas] Popperian Jurisprudence [Amended]
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Thu, 18 Oct 2012 14:51:39 +0100 (BST)
Yesterday I wrote:
âBut there is something that links (a) and (b) of my post:-â
Â
I should have written âBut there is something that links (1)
and (2) of my post:-â
Â
Similar confusions of numbers and letters then continued in
yesterdayâs post.
Â
Below is an attempt to correct these confusions, while
taking the opportunity to add a few more points and changes:-
Â
If you look at the case [Pilcher
v Rawlins] that (in English law) is authority for the rule at (2) (that a
buyer of a house in good faith from a dishonest trustee takes ownership free of
the trust), you will find no explanation for this rule in terms such as
discussed
at (2) in my post. In fact, there is scant explanation for the decision at all:
in the Pilcher v Rawlins judgment,
the rule is not located within a framework of comparable rules [such as the
common law rule that a buyer of stolen property does not acquire a good title,
and exceptions to this like the 'market overt' rule]; still less is the
decision explained as a result of weighing up the consequences of deciding it
one way or another (so 'incentivising the party most able to prevent loss', as
per (2)(b) of my post, is not even implicitly a consideration). Instead, we
find at the end of the case that the plaintiff [the beneficiary of the trust
who was suing to get the house back] was "non-suited":- this tells us
that the result was not "judgment for the defendant" (on a matter
which was within the jurisdiction of the court - to decide for the plaintiff or
for the defendant), but that the court was ruling that _it had no jurisdiction_
to do what the plaintiff wanted, which was to order the defendant [the honest
buyer of the house] to convey it to the plaintiff or hold it for the plaintiff
[as
beneficiary of a trust to which its legal ownership was subject].
Now what does this tell us (jurisprudentially speaking)?
Does it, for example, invalidate the arguments at (2), as these do not feature
at all as considerations in the judgment given in Pilcher v Rawlins? Not
necessarily, or even ânot at allâ*/**: for
these arguments/considerations may well, in some shape or form, have been
decisive (or partially decisive) but not mentioned in the judgment; and we
might also bear in mind that what is said at (2) is far from exhaustive of what
arguments and considerations might logically affect the decision in that case -
there may be other arguments and considerations that could have weighed with
the court but which also do not show up in the case report or judgment. Also,
we shall see that an apparent reason*** given for the decision [âlack of
jurisdictionâ] is question-begging as an explanation: which indicates we need
to look elsewhere for an explanation. For all we know, when reading Pilcher v
Rawlins, that was an appeal
case which was re-stating a rule that was well-known to professionals but which
had not been appealed before, and so the short shrift given to the appeal is
reflected in the cursory nature of the reasoning. It may be the pros and cons
of the argument had been exhaustively explored in previous
(unreported) cases, but the court in Pilcher
v Rawlins did not deign to rehearse these in its judgment.
What Pilcher v Rawlins does
illustrate is why it is very problematic, as mentioned at (1) in my post, to
think we can straightforwardly 'read off' the underlying legal thinking from
'what judges say'. Sometimes 'what judges say (when giving judgment)' may be a
reliable guide to the underlying thinking that underpins the decision, but
sometimes it may be an unreliable and even misleading guide. Sometimes 'what
judges say' cannot be taken at face value - indeed, it isÂ_ always open to
argument_ to what extent 'what judges say' can be taken at face value in any
particular case. This indicates why the flaw in the tutor's book (mentioned at
(1) in my post) is so fundamental, if not somewhat shocking at doctorate level
(unless one realises Oxbridge can be a parochial backwater).
This issue goes to fundamentals of legal reasoning, and of 'understanding the
law', in a way that more than one worthwhile doctoral thesis might be grounded
on it - and it is beyond detailed treatment in a post like this. Nevertheless,
even though the case of Pilcher
v Rawlins might not seem to raise anything that fundamental as a matter of
"policy" or jurisprudence, it provides a way into the issue of how
far a court's public 'judgment' is a reliable guide to its own jurisprudential
basis?
In that case, once the court has decided the result, what was weighed up need
not feature in the publicly given decision and its reasons. Courts are expert
(as one might guess) at giving what might be termed 'proper legal reasons' -
and 'proper legal reasons' may be more likely to be minimal 'adequate reasons'
than maximal 'comprehensive reasons' - for the expert may know that saying more
than necessary to justify a decision gives a possible 'hostage to fortune',
where the disadvantages likely outweigh any advantage. This alone counsels us
to be wary of taking any legal judgment at face value in terms of
'understanding the law'. What may have to be taken at face value is simply the
legal effect of that legal judgment, not its status as a guide to understanding
why that decision was taken.
For the sake of argument, here we will assume the court weighed everything up
fairly exhaustively in Pilcher v Rawlins [or in previous unreported cases which
adopted the same rule] - not because it
is likely true that they did (in fact, it is unlikely), but because we will see
that, even if they did, the actual judgment may be a pale reflection of the
process that led to the decision reached. Having weighed everything up and
decided the honest buyer should keep the house, the court _need not say more
than is adequate_ to justify this decision: and so, in Pilcher v Rawlins, the
court (without even making this very clear)
rests on the fact that obligations under a trust arise to prevent
unconscionable conduct; and, because it would not be unconscionable for the
honest buyer to keep the house, that means keeping the house is not something
subject to any obligation under a trust. Of course, the decision that "it
would not be unconscionable for the honest buyer to keep the house" could
be disputed by saying 'How can the buyer keep in good conscience what he
discovers was subject to a trust?' But the court's decision puts an end to that
dispute as far as the law goes; and, having decided, the court can express its
decision in terms of a lack of jurisdiction.
Now, can we _explain_ the decision simply in terms of a lack of jurisdiction?
This is how the court might seem to explain its decision (at least according to
the tutorâs book***):- but a little reflection will show this apparent
explanation is not really any proper kind of explanation. For as an explanation
it would seem to beg the question:- as the supposed "lack of jurisdiction"
is only something that follows from the decision that "it would not be
unconscionable for the honest buyer to keep the house", it cannot properly
_explain_ that decision.
The deeper explanation lies elsewhere (I suggest). It lies in seeing the court
engaged not merely in determining the limits of its own jurisdiction (as this
is a by-product of a decision as to what those limits are) but in solving
certain kinds of problem. To understand what is going here we need to
understand how the courts understand the problems they face. When we look for a
deeper explanation we may find one in 'incentivising the party most able to
prevent loss', even though this is not even implicitly a consideration in the
judgment.*/** Or we may find fraud-prevention is the underlying explanation, as
per (2)(c) of my post. */** Or we may
find that the decisive factor is simply the judgment that "it would not be
unconscionable for the honest buyer to keep the house", and so explaining
the case any deeper involves going deeper into why this is the courtâs
judgment.
Â
**But let us say we had reason to think neither (2)(b) nor
(2)(c) factored in the courtâs judgment (say because of the terms of the
judgment, or what the judges told us privately). Would this mean (2)(b) and
(2)(c)
were irrelevant to âunderstanding the lawâ? Not necessarily, or even ânot at
allâ. They might still be crucial; more important than âlack of
jurisdictionâ***,
or lack of unconscionability, as a reason for the decision. Even if (2)(b)(c)
were not factors in the decision as arrived at, they may be crucial to why that
decision has endured â because had that decision been otherwise, it would have
been seen to have wrongly allocated the loss or to have permitted fraud; and so
those considerations would have led the law to be changed. In this way, they
may be considerations relevant to âunderstanding the lawâ as it has endured,
even
if they played no part in some initial decision reached on the law. [This helps
explain why some study of the effects of the law may be relevant to
âunderstanding the lawâ even though that study played no part in the process by
which that law was arrived at.]
Moving on to a different point: let us say a lawyer pointed out a
counter-example to the view that "it would not be unconscionable for the honest
buyer to keep the house". In their counter-example the buyer is extremely
rich and can afford to lose the house, whereas, without the house, the
beneficiary of the trust would be left destitute. Moreover, the destitution of
the beneficiary would mean that of his family. Surely it would be
"unconscionable" for the buyer to keep the house in those
circumstances?
But this would cut very little ice with the court, because they cannot adopt a
means-tested or need-based criterion for deciding who should keep the house -
and so any such counter-example gives rise to a possible
'counter-counter-example', where it is the beneficiary who is rich and the
buyer and his family who would be left destitute.
So now we might ask:- why can the court not adopt a means-tested or need-based
criterion for deciding who should keep the house? It would take too long to
"explain" here, but let us say that such a criterion would make
property rights subject to a calculus based on extrinsic evidence of
"need", and this is incompatible with the policy of the law to
allocate property rights according to rules based on intrinsic features of
relevant transactions [e.g. who 'owned' what, what they âtransactedâ with it,
with who, etc.].
This is only a sketch of what may be involved in understanding the law here
correctly:
but it brings out the problematic nature of attempting to 'read off' legal
thinking from 'what judges say' - and it suggests we can always push the
questions and arguments, such as those at (2) in my post, in a way that
reinforces
the criticism made at (1) in that post.
Donal
London
*It should be borne in mind that the explanation of the case in terms of
'incentivising the party most able to prevent loss', or of âfraud-preventionâ,
was
not offered to show that these are the only or correct explanation(s) of that
case, but to show that the tutor's published criticism of the justice of the
decision
is both specious and spurious.
Â
***That âlack of jurisdictionâ is the reason for the
decision is something also asserted by the tutor in his book. This, however, is
only his interpretation and his error:- the court itself does not assert âlack
of jurisdictionâ is the reason for its decision. That is because âlack of
jurisdictionâ is a conclusion that only follows from the judgment that "it
would not be unconscionable for the honest buyer to keep the house". It is
that judgment that underpins the case. Consequently, the tutorâs book leads the
reader up a further blind alley (not for the first or last time) when it
suggests
the explanation for the decision is âlack of jurisdictionâ, and that this
jurisdictional limit owes its explanation to âconstitutional lawâ. Though all
limits
of the courtsâ jurisdictions are part of a full understanding of âconstitutional
lawâ, that does not mean that the reasons for those limits are derived from
âconstitutional lawâ-thinking. Those reasons may be constitutive of aspects of
âconstitutional lawâ without being themselves the result of âconstitutional
lawâ-thinking: as in this case, where the judgment that "it would not be
unconscionable for the honest buyer to keep the house" is not a judgment
that owes anything much to âconstitutional lawâ. We get some sense, that the
tutorâs reference to âconstitutional lawâ is an exercise in misplaced
grandiosity
here and quite bogus, when we see that had the court instead decided that "it
would be unconscionable for the
honest buyer to keep the house" this would hardly have provoked any
constitutional crisis (or even mild
upset).
Â
The (1) and (2) previously posted:-
Â
Â(1) One tutor's book, based on his doctoral
thesis, was an attempt to show the role of "policy" in judicial
decision-making, by way of reading off the role of "policy" in
various judicial decisions. This 'reading off', we were repeatedly informed,
amounted to an "empirical critique" of rival jurisprudential views.
Aside from the misconceived and pretentious use of "empirical" (for
how was this 'reading off' falsifiable by observation?), what the book lacked
was some kind of argument or analysis that explained how we move from 'what
judges say [when giving judgment]' to the underlying jurisprudence. Imagine, at
doctorate level, using the 'talk of mathematicians' where they talk as if
mathematical objects are real objects of some sort [rather than the product of
conventions] as an "empirical critique" of any view that mathematical
objects are not real: without a bridging argument showing how this (mere)
"talk" grounds such a philosophical conclusion, one might think this
would be blue pencilled even in an undergraduate essay. Yet the equivalent kind
of approach seems adequate for a doctorate in law from Cambridge. Here what
should be the meat-and-potatoes of such a "thesis" - the argument
constituting the bridge from 'what judges say' to the underlying jurisprudence
- is left aside as if its not really necessary, or is self-explanatory, or as
if it is provided simply by (mis-)using jargon like "empirical
critique".
(2) Another tutor's book was littered with specious and spurious claims of which
the following is an example, but requires some scene-setting. At common law, if
I steal your painting and sell it to another who buys in good faith, that buyer
does not get a good title - you can sue the buyer to get your painting back.
But property held under trust is different. If I hold ownership of a house as a
trustee for you [with my name on the deeds as the legal owner], and I sell the
house to another who buys the deeds in good faith and without knowing my legal
ownership is subject to a trust [which trust I have kept hidden from them], you
cannot sue the buyer to get back the house. The tutor describes this different
result as the "only unacceptable result", because, to the
buyer, the common law crook [who never legally owns the property] and the
dishonest trustee [who has legal ownership but subject to a trust] will look
the same. But this is specious and spurious. (a) They do not 'look the same' in
any decisive sense: in terms of being detected by a buyer, the common law crook
is much more detectable than the dishonest trustee: for the dishonest trustee
is the legal owner, and so that they are the person named in the title deeds,
and
that those deeds are genuine, will check out because it is true; the common law
crook can only pull off a fraudulent sale of a house by using fake deeds, or by
pretending to be the person named in genuine deeds - but, in both cases, the
pretense is detectable in ways that will not detect that a genine legal owner
holds subject to a trust. Ergo, they do not necessarily look the same at
all. (b) The broad question is which of two innocent parties should suffer. And
it might well be said -contra the tutor completely - that the 'only
acceptable result' is that the loss should fall on the party most able to
prevent the loss - not merely because this is just as between the two innocent
parties, but because it is the only rule that gives the party most able to
prevent the loss, a proper incentive to prevent that loss. Hence the apparent
difference in result. At common law, it is the buyer who should be incentivised
that they are not buying from a common law crook who has no proper legal title,
since the buyer is more able to ensure this than owners are able to ensure that
their property is not stolen; and so the loss should fall on the buyer of
stolen property, and not on the person whose property has been stolen. But when
the property is held under a trust, the loss should fall on the trust and not
the buyer - because it is the settlors of the trust who should be incentivised
to ensure that they choose a trustworthy trustee, something which they can try
to ensure much more readily than a buyer can ensure that a legal owner does not
actually hold that ownership subject to a trust. Without the incentives being
allocated properly, the law would not only become unacceptable in its working
but would fall into disrepute. But we also see that while on the surface the
result may differ [in one case the buyer loses, in another the buyer wins] the
underlying rationale for this apparent difference is the same viz. proper
allocation of incentives to those most able to prevent the loss (c)
Without the rule as it is, the law would not merely fail to incentivise to
prevent loss but would facilitate fraud - for the settlor could otherwise
connive
with a dishonest trustee so that the dishonest trustee sold the property and
made off with the proceeds, both knowing that the beneficiary of the trust
could then sue to get the property back. (Seen properly, the tutor's [typically
unargued and unexplained] contention is
not merely one of a poor teacher but of a poor lawyer.)
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