[lit-ideas] Re law as prob-solvg
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Mon, 16 Mar 2015 07:56:17 +0000 (UTC)
(Blocked elsewhere)
>I might suggest that we see some sources outside Donal's head that cite
>'ruling for neither" as a valid legal option. >
Pilcher. Have a read. In particular right at the end - where it says "Plaintiff
non-suited". (With the right legal training, you can read a lot, quite
correctly, into a very few words.)
Declining jurisdiction amounts to a "finding for neither" (as has been
explained). Even though 'lack of jurisdiction' may suit one party and thus be
more favourable to them, it may suit neither. An example is the courts here
have decided they will decline jurisdiction on a "What-if?" version of a legal
issue e.g. a litigant wants to know whether a specified trust for tax-saving
purposes would be lawful. They go to court and are told the court will not
exercise its jurisdiction on a "What-if?" basis; that is a "finding for
neither" in that it leaves the issue open. It would be the same if two parties
disputed the effect of a proposed transaction and wanted the dispute decided in
advance by the court: the court would decline jurisdiction and that would
amount to a "finding for neither" - and one that may not suit either party.
Examples could be multiplied were it would suit both parties to have a legal
ruling on a proposed course of action but where the court will decline
jurisdiction and thus make a "finding for neither".
(Btw, this declining of jurisdiction in 'hypothetical' cases - no matter how
likely they otherwise are or how useful would be a ruling - is another good
example of legal decision-making not owing to "conceptual analysis" but to
practical problem-solving.)
But this line of query from Omar is something of a red herring given that the
issue to be addressed is whether (a) (b) or (c) should be preferred as legal
options. And perhaps the "red herring" is my fault, as I included (c) as an
option.
So perhaps (spoiler alert) I should make clear that in terms of the issue
raised, (c) "Finding for neither" was itself a red herring. That is because
when matters are within the jurisdiction of the court - as in the case of the
ship's insurance - the "burden of proof" operates as a 'default rule' so that
there cannot be a "finding for neither": even where the evidence does not
justify any finding given the standard of proof, the burden of proof will be
applied to the issue and the party bearing the burden will then lose on that
issue. So, given that (a) and (b) are the only viable options in Case I, the
issue can be put as follows: does 'the more probable of two improbable
versions' satisfy the law "on the balance of probabilities"?
The pov I am trying to convey is that the answer to this question, in law, is
not based on "conceptual analysis" of "the balance of probabilities" but on
substantive practical considerations.
Dnl
On Monday, 16 March 2015, 1:35, "dmarc-noreply@xxxxxxxxxxxxx"
<dmarc-noreply@xxxxxxxxxxxxx> wrote:
My last post today!
In the "Retrospective Epilogue" to WoW (Way of Words), Grice speaks of
Athenian dialectics, which he compares to Oxonoian dialectics. He does not
mention H. L. Hart, but he should!
This reminds me of Roman dialectics and what a disastrous start it had!
In the year 155 BC, when Carneades was fifty-eight years old, he was
chosen with Diogenes the Stoic and Critolaus the Peripatetic to go as
ambassador
to Rome to deprecate the fine of 500 talents which had been imposed on the
Athenians for the destruction of Oropus.
During his stay at Rome, Carneades attracted great notice from his
eloquent speeches on philosophical subjects, and it was here that, in the
presence
of Cato the Elder, he delivered his several orations on Justice.
Carneades's first oration was in commendation of the virtue of Roman
justice.
The next day, Carneades's second oration was delivered, in which all the
arguments he'd made on the first were refuted, as he persuasively attempted
to prove that justice was inevitably problematic, and not a given when it
came to virtue, but merely a compact device deemed necessary for the
maintenance of a well ordered society.
Recognizing the potential danger of the argument, Cato was shocked at this
and he moved the Roman Senate to send Carneades home to Athens, and prevent
the Roman citizenry from the threat of re-examining all Roman doctrines.
When Hart was appointed Professor of Jurisprudence at Oxford, the scandal
was _analogous_! (But they couldn't send Hart back to Harrogate, could
they?)
Cheers,
Speranza
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