[lit-ideas] Re: Re law as prob-solvg
- From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
- To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
- Date: Tue, 17 Mar 2015 22:01:39 +0000 (UTC)
Omar is correct to write: “Given that the burden of proof was assignedto the
plaintiff, and that the plaintiff failed to make a convincing case, itseems
that the court should rule in favour of the defendant.” However, this
conclusion was notdrawn by a trial judge in an English case which established
this point. Thattrial judge decided in favour of the plaintiff – because the
plaintiff’s casewas less improbable than the defendant’s, and therefore was the
more probable. Being‘more probable’ in this way, the plaintiff’s case was taken
by the trial judgeto be preferable “on the balance of probabilities”. The
result was reversed by theCourt of Appeal. In effect, the Court of Appealruled
(or made clear) that the “balance of probabilities” is not the balance
asbetween the parties, or relative to their respective cases, but isthe
“balance of probabilities” as applied to each party’s case individually. Aparty
therefore can only succeed on an issue where their case on that issue is‘more
probable than not’, and their case does not become ‘more probable’ inthis sense
simply because of the relative improbability of the other party’scase. My
suggestion is that bothinterpretations of the term “the balance of
probabilities” – the trial judge’sand the Court of Appeal’s - are
‘conceptually’ valid and without logical flaw. To understand why theCourt of
Appeal’s interpretation should be preferred on substantive grounds(and not
grounds based on it being higher up the chain of legal authority), weneed to
understand the function of the standard of proof in the context of
legal-decision making. And the phrase ‘in the context of legal-decision
making’is really a surrogate for examining theproblems that would attach to the
adoption of a particular interpretationand approach given how this would work
in practice. That is, it is a surrogatefor a ‘problem-solving’ approach. The
following articulates an importantpractical difference between a decision made
by a court and decisions made inother problem-situations. In an emergency
situation, a person may have to actto escape death – but say there are only two
possible courses of action toescape death, but their chance of success is less
than ‘more probable than not’i.e. both options have less than a50/50 of
success: it would still be rational to follow the least improbable ofthe two
options, since this is the ‘most probable’ of the two options; indeed,it would
be mad to not decide and to not act simply because neither option is‘more
probable than not’ in terms of its success. In situations where we haveto act,
we may rationally prefer the ‘least improbable’ – even though ‘theleast
improbable’ is, on a probabilistic scale, less than ‘more probable thannot’.
In the light of the Court ofAppeal’s ruling, clearly English law does not take
the function of a civilcourt as having to act, in the sense of‘make findings’:
rather courts must be persuaded to act in this sense. And modernEnglish law
takes the view that there is an absolute rather than relativestandard required
to be satisfied before a court is persuaded: English law doesnot see the
function of a civil court as deciding merely on the relative meritsof the
parties’ respective cases, for, on the relative merits, the plaintiff’scase was
‘more probable’ than thedefendant’s. There are two main arguments thatsupport
this English law approach. One is based on ‘public confidence’ andrelated
notions. The other is based on ‘deterrence’, and related notions, insetting
standards of conduct. The two are mutually supporting. The ‘public confidence’
argumentcan be variously put but might be put as follows. The court is an
authoritativebody that serves the public and for it to ‘make a finding’ must be
for it to bepersuaded to a publicly acceptable standard. Where a case is less
than ‘moreprobable than not’, it is below the threshold of the publicly
acceptablestandard. This can be also be expressed by saying that a ‘relative
merits’ approachwould undermine public confidence in findings of fact made by a
civil court,since it would lead to courts endorsing a flawed case simply
because the otherparty’s was even more flawed. Public confidence requires then
that an absolutestandard is applied to each party. The “deterrence” argument
has atleast two aspects. First, parties with improbable cases should be
deterred frombringing them to court, and an ‘absolute’ standard does this much
better thanwould any standard merely relative to the parties. Second, all
parties may betempted to present a false case, and this should be deterred, and
an ‘absolute’standard does this much better than would any standard merely
relative to theparties. It is easy to imagine litigation where both parties,
for whateverreasons, prefer to knowingly present a false case (e.g. they both
want to conceal their wrong-doing) – and the courtsmust have an approach that
operates as a deterrent to both. Here the ‘publicconfidence’ and the
‘deterrent’ arguments may be seen to coalesce. These kinds of
considerationindicate that we do not arrive at the best legal solution by
‘conceptualanalysis’ of wording like “the balance of probabilities” or even
“more probablethan not” (for this wording could be interpreted as probable
relative to theparties’ respective cases and not in absolute terms): we arrive
at the best legalsolution by considering the practical problems engendered by a
particularinterpretation or approach. And these practical problems are always
of asubstantive and not merely analytic character. They are also problems with
adistinct World 3 character – including a W3.3 character. But then most of you
knew thisalready. DnlLdn
On Monday, 16 March 2015, 11:07, Omar Kusturica <omarkusto@xxxxxxxxx>
wrote:
That said, we don't know the details of the insurance contract, and whether
the contract would provide coverage for cases of negligence, which seems to be
a likely explanation of what happened.
On Mon, Mar 16, 2015 at 11:04 AM, Omar Kusturica <omarkusto@xxxxxxxxx> wrote:
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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