[lit-ideas] Re: Re law as prob-solvg
- From: Omar Kusturica <omarkusto@xxxxxxxxx>
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Mon, 16 Mar 2015 11:04:51 +0100
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.
*Indeed. Now that we have established that there is no viable option of
"ruling of neither," at least in the case at hand, the matters become
rather more simple. Given that the burden of proof was assigned to the
plaintiff, and that the plaintiff failed to make a convincing case, it
seems that the court should rule in favour of the defendant. That the
defendant also failed to make a convincing case is less important,
particularly considering that the defendant wasn't there when the fire
occurred, and probably wasn't in a good position to ascertain the facts.
Any witnesses would probably be employees of the plaintiff, if they hadn't
been involved in rigging a fire themselves, so we can hardly expect them to
co-operate with the defendant. And if the plaintiff had indeed rigged a
ship fire, we may expect that he (or they) would have done his best to rig
the physical evidence as well. But the most important thing here is the
concept of "the burden of proof" which enables the court to reach such a
decision. If the burden of proof had been allocated differently, the
decision might well be different.
O.K.
On Mon, Mar 16, 2015 at 8:56 AM, Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
wrote:
> (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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