[lit-ideas] Re: Problem Solving: The Analysis

  • From: Omar Kusturica <omarkusto@xxxxxxxxx>
  • To: lit-ideas@xxxxxxxxxxxxx
  • Date: Sat, 7 Mar 2015 14:41:54 +0100

On the other hand, it could have something to do with conceptual analysis.
Recently a video was published here in which some of the leading members of
the ruling party are plainly heard discussing what appears to be a scheme
for electoral manipulation. After reviewing the video, the chief prosecutor
announced that the content of the tape 'does not contain elements of
criminal responsiblity' or some such formulation, and that she would not
prosecute. This caused some surprise among the public and certainly was not
generally agreed upon. The authenticity of the video was not disputed by
anyone, rather it was the conceptualization of 'elements of criminal
responsibility' that was. I am not sure how it ended - I think that a
couple of persons of lesser importance were eventually prosecuted.


On Sat, Mar 7, 2015 at 1:26 PM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>

> 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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