[lit-ideas] Re: Problem Solving: The Analysis
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Sat, 7 Mar 2015 12:26:34 +0000 (UTC)
This post belongs in the "Philos of Law" thread but is blocked there after an
internet malfunction.
>McEvoy writes:
"The most extensive posts I recall making on a legal issue were on the
issue of a 'hidden trust' [in the English case Pilcher v Rawlins]. But these
were not intended as merely lawyerly but as a preliminary to a Popperian
account of legal thinking."
i.e. a problem solving approach to legal reasoning.>
Yes: in a nutshell the "Popperian approach" is "a problem solving approach to
legal reasoning". But there is perhaps more to this than meets the eye.
For example: >after law, the property IS, physically, a patch of land -- >
This is very problematic and risks going wrong because it fails to make key
distinctions in terms of W1, W2 and W3.
There is a W1 substrata to property that has a physical manifestation e.g. a
patch of land. But a "patch of land" as a legal entity is never a mere W1
entity (as it may be regarded, by contrast, in physics): a "patch of land" qua
legal entity is a W3 construct. This is obvious enough - for it is not by any
principle of physics, or any other theory pertaining merely to W1, that we can
draw the lawful boundaries between one patch of land and another.
>McEvoy goes on:
"- for the soundness of the decision in Pilcher depends on evaluation in W3
terms. These terms include the unavoidable consequences that would follow
from any decision,"
which seems to rely on the keyword: MORAL CONSEQUENTIALISM, whereas Hart
ORDERS, as it were, to SEPARATE legality from morality!>
This is wrong: it doesn't rely on or involve "MORAL CONSEQUENTIALISM", or
amount to a doctrine of "MORAL CONSEQUENTIALISM", to maintain that legal
analysis involves - with many other things - looking at the unavoidable
consequences of situations.
In the case of Pilcher it is an unavoidable consequence that should the
purchaser not take free of the trust then (a) all purchasers need to beware the
trap of a "hidden trust" (b) there would not be any incentive, deriving from
potential loss of the beneficial interest, for the trust-side to set the trust
up so as the minimise the possibility of a "hidden trust"-type of fraud (c) the
trust-side would have an incentive to fraud because the purchaser could be
defrauded while keeping the interest of beneficiary.
These unavoidable consequences may be regarded as holding in W3.3 before they
are appreciated or understood by any court seeking to resolve the Pilcher
problem: and the court, when analysing the case in terms of such unavoidable
consequences, is doing something similar to Euclid when he sought a proof for
the infinity of primes - it is grasping W3 "objective knowledge" that has a
kind of virtual existence in W3.3. prior to it being grasped. Just as Euclid's
proof of the infinity of primes existed to be discovered in W3.3 before Euclid
discovered it, so the unavoidable consequences in a case like Pilcher exist in
W3.3. before they are seen by the court - and indeed even if the court fails to
see them.
So a case like Pilcher can be used to exemplify the role of W3.3 in the
development of the law and in legal reasoning. And this reinforces the more
general point that "law" is not a W1 entity nor a mere W2 entity but is a W3
construction - of course one developed in interaction with an intensely active
human W2 but nevertheless with its own distinct W3 character.
As mentioned, in the Popperian schema the problem-solving sequence is without
end. This holds for the law when considered as a whole: for there are always
new problems and new problems generated out of a legal 'structure of thought'
[i.e. law qua W3 construct] that sets out the solution to old problems. But the
law is not a theoretical exercise in understanding a reality that exists purely
independent of itself and to which it tries to be "true" as in a
"correspondence theory of truth": the law is a practical exercise in
decision-making. One of the practical needs in the law is the need for
finality: and so, in practical terms, a legal decision-making process must come
to an end somewhere (and often sooner is better than later), whereas in a
subject like physics any provisional judgment may be reopened by further
testing and theorising.
Prior to 1965, the Supreme Court in the UK was hidebound by a doctrine that it
could not overturn any of its own decisions - a doctrine that owed more to the
need for finality than to any legal equivalent of "papal infallibility". But
since 1965, when that doctrine was revoked [by a Practice Direction], the
Supreme Court has even reversed some its own decisions within a year or two of
making them. The Supreme Court has done this when persuaded that its earlier
decision was - when everything was reconsidered - mistaken. There could hardly
be anything more Popperian than that: and I emphasise that when the Supreme
Court admits such a mistake on its part, it is never a mistake in mere
conceptual analysis but a substantive error in judgment where they have failed
to adopt the best solution to the legal problem at hand. Of course, even these
revised judgments are fallible.
When we understand the legal process properly we will see it adheres much more
to the 'critical approach' and to a 'theory of knowledge' of a Popperian sort
than it does to any kind of 'conceptual analysis'.
I will go further: 'conceptual analysis' in the law is a kind of philosophers'
talk that has been imported in by some lawyers under the sway of such talk
(which after all may sound very impressive to some), but it has no more role in
the law than induction has in science.
Best,Donal
On Saturday, 7 March 2015, 11:49, "dmarc-noreply@xxxxxxxxxxxxx"
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
Perhaps 'the' analysis, rather than 'an' analysis seems presumptuous, but I
guess I'm trying to be provocative. (Recall that when Strawson published
his analysis of 'entails', he called his work: Introduction to Logical
Theory, and NOT as it is often quoted, AN introduction to logical theory.
McEvoy seems to be opposing a problem-solving approach (to legal matters,
but this is irrelevant) to a conceptual-analysis approach. In particular,
as I see it, he endorses a Popperian approach to a problem-solving approach!
And that may be in need of analysis!
In "All Life is Problem Solving" (implicating All _of Popper's life *has
been* problem solving) Popper seeks to explain the alleged progress of
knowledge – that is, how it is that our understanding of stuff seems to
*improve* (optimism) rather than not (pessimism).
What was the life that Popper saw as solving a problem. Was he having a
particular problem in mind?
Well, yes, Popper's problem (and his life can be seen as attempt to solve
this) is that some stuff simply does not lend itself to being shown to be
false, and therefore, is not falsifiable.
If so, then how is it that some allege a growth of knowledge?
In Popper's view, the alleged advance (or growth, or progress) of
knowledge is just yet another evolutionary process.
Only unlike Darwin, Popper was more of an analytic mind, and looked for
symbols. Popper's formula runs:
PS1 --> TT1 --> EE1 --> PS2
In response to a given problem situation ("PS1"), a number of competing
conjectures, or tentative theories ("TT"), are systematically subjected to the
most rigorous attempts at falsification possible.
This process of subjection, error elimination ("EE"), performs an
ANALOGOUS role for knowledge that Darwin's natural selection (of finches, for
exmaple) performs for biological evolution (of finches) -- See: Darwin's
Finches.
Yes, a stretch of an analogy, but not for Popper!
Theories that better "survive" (where the verb is used totally
figuratively) the process of refutation are not more true, but rather, more
"fit" —
Popper borrows, but never returns, the phrase that Darwin borrowed but never
returned from the analytic philosopher, _avant la lettre_, Herbert Spencer!
In other words, 'fit', which is figurative enough as used by Darwin --
cfr. criticism of survival of the fittest as an ananlytic adage -- "the
fittest survives" -- here means: more applicable to the problem situation at
hand, i.e., the initial PS1.
By 'more applicable' Popper means that the theory that survives is the
_best_ solution to the problem. Since we HAVE to use 'solution', when the
keyword is "Problem Solving". Or even better, the theory that survives
_solves_
the problem.
Consequently, just as a species' biological fitness (e.g. the finch's
fitness) does not ensure continued survival, neither does rigorous testing
protect a theory from eventual refutation.
Yet, as it appears that the engine of biological evolution has, over many
generations, produced adaptive traits equipped to deal with more and more
complex problems of survival, likewise, the evolution of theories through
the scientific method may, in Popper's view, reflect a certain type of
progress: toward more and more interesting problems: the problem situation
"PS2"
in the formula. And so ad infinitum.
For Popper, it is in the interplay between the tentative theories
(conjectures) and error elimination (refutation) that knowledge advances
toward
greater and greater problems -- never mind greater and greater solvings of
these problems.
For Popper, it's a process very much akin to the interplay between genetic
variation and natural selection.
But of course the keyword: problem-solving has been understood variously.
Consider:
Amsel, E., Langer, R., & Loutzenhiser, L.
Do lawyers reason differently from psychologists? A comparative design for
studying expertise.
In R. J. Sternberg & P. A. Frensch (Eds.), Complex problem solving:
Principles and mechanisms (pp. 223-250).
Hillsdale, NJ: Lawrence Erlbaum Associates.
The keyword there, 'complex problem solving', seems to vary from Popper's
interpretation of simple 'problem-solving'.
I hope we may return to the thread: "The Philosophy of Law" under this
light. Indeed, we can add the keyword: 'problem solving'.
The point would be how it proceeds and how Popperian we want to be. I don't
think, from the reading of McEvoy's approach to Pilcher, that he is
committed to the 'evolutionary' view. If so, it may be termed 'utilitarian',
perhaps and ultimately moralistic. But there is problem solving and there is
problem solving.
Another problem solving approach may proceed more 'analytically', and since
I only want to play the Hartian, alla Hart. It would proceed by examining
certain keyterms in the case, such as 'legitimate', 'legal', and so forth.
And when the court decision is held, it may be viewed as a mere application
of those rules that Hart saw as meta-rules, rules of rules, i.e. legal
rules of legal rules.
The evolutionary approach by Popper, as W. W. Bartley, III, well knew, is
'ad infinitum'. As the formula above shows. There is a PS1, and a PS2, but
that is just an abbreviation for PSn. I.e. --> ... PSn. As Bartley would
say, 'everything is convroversial, including this claim'. So it's not like we
reach a definite solving of a problem.
In which case, we may term a Popperian approach utilitarian (since it
relies on the 'survival of the fittest', which is Spencerian and utilitarian or
consequentialist in essence?) and relativistic, in that it entails that the
solving of the problem now reached is not the _ultimate_ (in all the
senses of this word -- fortunately, it only has one!).
The bibliographical reference to this compilation: "Complex problem
solving" is to show that a Popperian approach is JUST one of them. And while
those who read this sort of stuff are hardly to be philosophers (the intended
audience, as the backcover blurb usually has it), I allow that the keyword:
problem solving may have a general philosophical interest.
It may relate to Peirce's idea of ab-duction. Not in-duction, not
de-duction. In this case, the branch of philosophy on which 'problem solving'
falls
is no more no less than the keyword by that brilliant book by [THIS
PHILOSOPHER I LIKE]: aspects of reason. For we are talking of a form of
reasoning. We are talking of assumptions, and we are talking of premises, and
we are
talking of 'conclusions' (the 'decision' in the court room).
Hart, admittedly, was not that much into legalistic REASONING -- but when
it came to the 'grits', if that's the expression -- his debate with Lord
Devlin -- he could, but I'm not sure how much Hart's contribution to the
debate (as a legal philosopher) had a practical effect on the real world
(other
than illuminating his privileged Oxonian students, that is -- especially
those law students that saw philosophy 'in the working' for the first time).
But there were and are OTHER influences to legalistic reasoning in Oxford:
anyone who follows Toulmin's book on inference notices the legalistic
approach --. We sometimes confuse a legalistic approach with a moralistic
approach, but some see 'moralistic' as a term of abuse! (I know Nowell-Smith,
in
"Ethics" did: "I'm NOT a moralist: I'm a meta-ethicist, if you mustn't!").
R. M. Hare was perhaps a different animal, figuratively. His examples of
moral reasoning may be compared to Hart's examples: just replace 'moral' by
'legal' everytime Hare uses 'prescription'. One big difference is that Hare
had some sympathy for deontic (his debates with Kenny on "Practical
Inferences", for example) and Hart would rather be seen dead than using a
symbol
of formal logic --. When he speaks of "A logician landscape" it seems as if
Hart has just come from an exhibition of Turner* at the Royal Academy! (But
I love him!)
Cheers,
Speranza
* After the British landscape painter -- NOW PLAYING.
Cheers,
Speranza
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