McEvoy is presenting some cases and sticking to a model of 'conceptual
analysis', which he opposes to a 'problem-solving approach' to law. But it
should be noted that there's more to philosophy (and more importantly, more to
Grice, if not Popper) than conceptual analysis (The 'if not Popper' is
meant as ironic: the non-ironic equivalent would be to consider whether there
is more than a problem-solving approach to law in a Popperian).
And I say there is more because one task of the philosopher is to provide
the 'rudiments' of reasoning -- legal reasoning including. It may be argued
that while moral reasoning is a first-person-based kind of reasoning, legal
reasoning is not, and usually premises involving 'the interests of
justice' are thrown into the 'bargain'.
Grice expands on PRACTICAL reasoning -- a term philosophers use when they
do not want to commit to JUST moral reasoning, and after Toulmin (who based
his essay "The uses of argument" on legalese) it is assumed that legal
reasoning is a garden variety of legal reasoning. Grice's cases of practical
reasoning, however, are, again, first-person-based: it is the practical agent
who reasons.
This reasoning is best seen as a sequence of ideas (or propositions) which
consist of an initial set (initial premisses) -- which may be suitably
expanded on request by the reasoner from the premises actually entertained (an
expansion thought by R to be formally cogent) -- together with further
members each of which is thought by R to be derivable by a principle of
inference intended by R to be a canonically formally valid one.
In the case of legal reasoning proper, this 'canonic form' may be
controversial and may involve a self-referential recognition rule.
In any case R (the practical agent initially, but other agents in legal
reasoning) reasons from P to C if R think that P & R intends that, in
thinking C, he should be thinking of something which would be the conclusion of
a
formally valid argument the premisses of which are a suplementation of P. In
this occurrence, the premiss P (or antecedent sequence) is the 'reason'
for the conclusion C.
Interestingly, like a Popperian, a Griceian requires that the reasoner be
motivated. We seeem to require (as we analyse the concept 'to reason', to
ascribe reasoning to R, a necessary condition to the effect that R is trying
to solve _some_ problem -- if not testing a hypothesis ("Hypotheses non
fingo").
Thus, we are reluctant to call 'reasoning' a pointless sequence of formally
valid steps as in
i. The defendant says that he has 2 hands. If he had 3 more hands, he
would have 5 hands. If he were
to have double 5, he'd have 10 hands. If 4 hands were removed, 6 hands
would remain. Ergo the defendant would have 4 more hands than he has now.
Therefore, the case should be dismissed.
It is this goal behind all sorts of resoning (including legalese
reasoning) -- the solution of a problem -- which gives us a criterion for
_successful_ reasoning. Successful reasoning achieves its goal.
Lawyers have adopted as legalese the adjective 'reasonable', usually
qualifying 'doubt' and in a negative form ('without reasonable doubt'). Does
this 'reasonable' touch on what we think as 'reason'? It does.
The philosopher would think that UNreasonable would be something like
'irrational', only weaker. Thus, while it would not be 'irrational' for the
defendant to expect his wife to clean his football boots, it might be
_unreasonable_. Those boots, too, were not bought at a very _rational_ price;
only
at a very _reasonable_ price. To cheat someone in a business deal (as such)
is not _irrational_ and is not _unreasonable_ --
it's just repulsive. And, while it would not be irrational to cheat a man
when you knew you might be found out and as a result lose a valuable
client, that would be a rather unreasonable thing to do. Irrational would
be to cheat him when you knew it was quite likely that you would be found
out, and when, if you were, you would lose your job at a time when
employment is very difficult to obtain. Yielding to a tempting invitation to
go out
drinking when you have already decided to spend the evening working on
tomorrow's lecture would be (as such) neither irrational nor unreasonable --
Just weak and foolish. To yield to that temptation when you have _not_ yet
decided what do do but know you ought to get on with that work for tomorrow
would yet not be irrational although it _might_ be unreasonable. Of rf you
have bungingly got your firm into a difficulty, and you go and confess the
matter to your boss, your boss might be both rational and reasonable about
it. Rational if he cooly and in a reasoned way tells you what is the best
course to take. Reasonable in that he is not to hard on you.
What is the CANONICAL form of practical reasoning. It seems to be something
like this: the canonical bones to which we add the legalese flesh and
muscle:
ii. If, prima facie, Act I would be a lie and Act II would not, P is better
than Q
Act I, but not Act II, would be a lie.
Ergo, ceteris paribus, P is better than Q.
This is a first-person approach: for anyone OTHER than the practical agent,
a practical conclusion is _nothing_ that one can draw, either logically or
decently or sensibly. What is a reason for a reasoner
R1 to do something may _not_ be a reason for R2.
iii. If Tommy has been tormenting my cat, it's best that I ambush him on
his way home from school.
Tommy _has_ been tormenting my cat.
Principle of Total Evidence
Ergo, I shall ambush Tommy.
There ARE ways to go beyond the first-person in legalese. Consider "The
sergeant is to muster the men at dawn" -- uttered by a captain to a lieutenant
-- as a legitimate imperative, or "The witness must be compelled to
testify". There is no need to restrict the realm of the intentional to the
first
person (or the imperatives to the second person).
In "The witness must be compelled to testify" (i.e. "There is (some)
reason for the witness to be compelled to testify. There is here an
agency-relative necessity. It's either the witness or _us_ who must do
something
about something. The canonical form seems to be:
iv. Obligatory P ~-> P.
This depends on interpretation only. If R says that R must eat his hat, R
is committed to his saying that he shall eat it. The agency-relativity of
"must" is just _system_-relativity.
Consider:
v. It is necessary for the defendant that X should becomes his defense
lawyer".
We mean: the lawer's becoming X's defense lawyer will be advantageous to
R1, and that it's R1 who shall bring about that R1 becomes so.
If it is necessary (relative-to-R) that R shall eat his hat, 'R shall eat
his hat' will be establishable.
A further problem concerns utterances which contain a _double_
agency-relative modality.
"It is necessary for Joe Gumb that the British public retains an interest
in cricket".
Here, we must distinguish between the agent R1 for whom something is a
reason and the agent R2 the utterance is _about_ when it is said what there is
a reason for.
Grice -- following Kantotle proposes a general universalisability thesis
to deal with these complex cases: It is necessary that, if it is necessary
for R1 that p should be the case, then let there be some condition C such
that R1 satisfies & and necessarily for any R2 who satisfies it is also
necessary for R2 that p should be the case".
While legalese reasoning should conclude with 'must', there's "ought"
(ceteris paribus acceptability), demed to be weaker than 'must'.
"To keep his job, a bishop ought not to show his irritation with
politicians". There is an ssociated conditional to this: "If one is to keep
one's
job and if one is a bishop then ceteris paribus, one is not to show one's
irritation with politicians".
While for doxastic (or belief-based) reasoning we qualify the conclusion of
a practical piece of reasoning -- such as legalese reasoning --with the
phrase "with some degree of _desirability_".
vi. Let it be that A. It is the case that B. Ergo, with some degree of
desirabiity, let it be that
C.
An illustration:
vii. It is acceptable that, given that R is to keep dry and that it the the
case that R is such that it rains,
that R is to take an umbrella. R is to keep dry. It rains. Ceteris
paribus, it is desirable that R takes an umbrella.
In symbols:
viii. Acc (Given !A & .B, !C) (via Acc (Given !Fx & .Gx, !Hx), !A. B.
(Principle of Total Evidence). Ergo, it is desirable that !C
ix. Acc, given that x is to one survive that x is to eat. By Universal
Instantiation, Acc, given that R is to survive that R is to eat. R is to
survive. Ergo, by Det, Acc, R is to eat.
Giving credit to H. L. A. Hart, Grice mentions the 'defeaters':
x. Ceteris Paribus, Acc (given that R1 likes R2, R1 wants R2's company. R1
likes R2. No DEFEATER (e.g. R is ill). Ergo R1 wants R2's company.
xi. Ceteris Paribus Acc (given that R is to leave USA, & R is an alien,
that R is to obtain a saling permit from the Internal Revenue. R is to leave
USA and is an alien. No Defeater (e.g. R is a close friend of the President
and R arranges a travel in Air Force I). Ergo, R is to obtain a sailing
permit.
If legalese loves 'reasonable', so it does 'evidence'; but the practical
(and legal) philosopher is concerned with a principle of TOTAL evidence.
xii. R is head accountant of a firm in Redwood City (it's accounting time)
& gets an invited from his mother to visit her in Milwaukee. Further, his
wife has had a bad car accident and is lying in a hospital in Boise, Idaho.
Acc (Given that R is to give his mother pleasure & that R is her favourite
son, R is to visit her in Milwaukee next week). Acc (Given that R is to
get ready his firm's accounts -- he's head accountant & it's accounting time,
R is to spend next week in his office). Acc, given that R is to give his
mother pleasure and he's to get ready the firm's accounts, & that he's the
favourite son, & head accountant and it's accounting time, that R visit his
for a long weekend & return to the office on Tuesday. Acc, given that R is
to sustain his wife & she is lying, after with two broken legs, internal
injuries, & much pain, that R is to spend next week in Boise
Idaho. Acc, given that R is i. to give his mother pleasure and ii. get
ready the firm's accounts and iii. sustain his wife, and that iv. R is the
favourite son and v. he's head accountant at accounting time, and vi. R is a
husband with a wife lying in Boise, Idaho, that R is to spend next week in
Boise, Idaho, and telephone the mother and the office daily.
Ergo Acc (R is to spend next week in Boise, telephoning his mother and
office daily.
A slightly different case concerns a doctor examining a patient: should he
give him electromixosis? (cf. 'should the witness order be granted?').
xiii. Given that the patient is to be relieved of cephalalgia (symptom:
headache) & he is of blood group G, the patient ought to take an aspirin.
Given that the patient is to be relieved of cepahlalgia _and gasteroplexis_
(symptom: stomach cramp) and that the patient is of blood group G, the
patient ought to be treated by electromixosis. Given that the patient is to be
relieved of cephalalgia and gasteroplexis and that he is of blood group G
& that his blood has an abnormally high alcohol content, the patient ought
to be given gentle message until his condition changes. R does not find an
abnormally high alcohol content in the patient's blood.
Ergo (via the Kantian switch on the face of unqualified indefeasibility),
the patient not just ought, but _must_ be given electromixosis.
The principle of total evidence here seems to be:
If R accepts-at-t an acceptability conditional C1, the antecedent of which
_favours_ to degree d
the consequent of C, and R accepts-at-t the antecedent of C1, and C is
optimal-at-t for R (i.e. after _due_ (or proper -- sic valuational) search by
R for such a further conditional, there seems to be _no_ conditional C
such that R accepts-at-t C2 & its antecedent, & the antencent of C2 is an
extension of the antecedent of C1, & the consequent of C2 is a _rival_ of
the consequent of C1, & the antecedent of C2 favours the consequence of C2
more than it favours the consequent of C1, R may accept-at-t, to degree d,
the consequent of C1.
This may relate to the Popperian play with the w3, in that the
possibilities have to be examined, even if in cases of practice they are not.
But the
philosopher is concerned with THEORY and he must at least provide for a
clause that the reasoner's search for this or that (sometimes counter-factual)
conditional has taken place.
Another example to illustrate the complexity of practical reasoning (to
which legal reasoning may be said to belong) consider:
iv. It should be, given that R is to preserve a good complexion & that S
has a relatively insensitive skin,
that S is to smear the face with peanut butter before retiring" ("SHOULD
(!p, .q; !r).
Now, the practical acceptability here seems to be based on the flat
belief-based acceptability of "SHOULD (.q, .r; .p)": "It should be, given that
R
smears the face with peanut butter skin before retiring & that R has a
relatively insensitive skin, that R preserves a good complexion". There is one
problem with the reducibility thesis: in the practical version, the
phrastic "p" features in the antecedent; in the belief-based version, it
features
in the consequent.
Some defeater may be so for the former but not but not for latter. This,
Grice notes, is what concerned Kant in the _Grundlegung_. Kant's example was:
"It's fully acceptable, given that R is to bisect a line on an unerring
principle, that R is to draw from its extremities two intersecting arcs".
Such a conditional is vouched for by the ANALYTIC claim of geometry: "If R
bisects a line on an unerring principle, R does so as a
result of having drawn from its extremities two intersecting acts". In its
more general terms, we need to explore the basis for "He who wills the
end, wills the indispensable means" -- even if, or especially if, the end
involves the 'interests of justice'.
Grice proposes seven steps in the derivation.
Step I: It is a fundamental law of psychology that, ceteris paribus, for
any creature R, for any P and Q, if R wills P & judges if P, P as a result
of Q, R wills Q. Step II: Place this law within the scope of a
"willing" operator: R wills for any P & Q, if R wills P & judges that if
P, P as a result of Q, R wills Q. Step III: "wills" turns to "should": if
rational, R will have to block unsatisfactory (literally) attitudes: R should
(qua rational) judge for any P & Q, if it's satisfactory to will that P &
it's satisfactory to judge that if P, P as a result of Q, it's
sastisfactory to will that q. Step IV: Expliciting mood specifications: R
should (qua
rational) judge for any P & Q, if it's satisfactory that !P & that if it .P,
.P only as a result of Q, it's satisfactory that !Q. Step V: via (p & q ->
r) -> (p -> (q -> r)): R should (qua rational) judge for any P & Q, if
it's satisfactory that if .P, .P only because Q, it's satisfactory that, if
let it be that P, let it be that Q. Step VI: R should (qua rational) judge
for any P & Q, if P, P only because p _yields_ if let it be that P, let it be
that Q. Step VII: For any P & Q if P, P only because Q _yields_ if let it
be that P, let it be that Q.
Prudential acceptability (and we are getting closer to legal reasoning
proper) can be dealt with in a similar fashion, i.e. as analytical
consequences of indicative statements to the effect that so-and-so is the
means to
such-and-such, with the proviso that there is a special end: "let R be happy".
It is this introduction of well-being (if not the interests of justice)
that guides ALL practical reasoning, for a Kantotelian philosopher. Grice
regards that end as what Hume would call a "natural disposition", i.e. a matter
of _natural_ necessity.
One complication is drawn from Austin: one thing is to know what is to be
done (the realm of "wisdom" qua _administrative_ rationality), another how
to do what is to be done (the realm of _phronesis_ as the executive
rationality). A further complication is brought by ends which are not only
_finitely_ non specific (I may want a
large fierce dog to guard my house, and don't care which kind) but
antecedently _indeterminately_ non specific -- i.e. not yet deliberated: I may
want a large fierce dog to guard my house, but may have not yet decided which
kind. Is the boundary between prhonesis and wisdom clear-cut?
Consider the case of ever dilligent Secretary. If a boss empowers his
secretary to make determinate the boss's indeterminately non-specific desires
not on behalf of his boss, but as _she_ thinks best, she just
ceases to be a secretary. She's best described as an administrative
assistant.
A further "problem" is that ends relating to prudence may be just
non-propositional (just as an amimal desires food, and not _to eat an apple_).
Grice explores at this stage an extremem scheme of "Crazy-Bayesy" deliberation
which rests on a mechanical model of the vectoring of forces (with desires
-- or animal spirits -- as such drives). In the scenario, R has two ends E1
& E2; each has a different degree of desirability: d1 and d2. Now for any
action A1 which will realise E1 or E2 -- to this or that degree -- there is
a probability p1 that A1 will realise E1 & a probability p2 that A1 will
realise E2.
The desirability of the action, relative to E1 & E2 is a function of the
desirabiity of E1 and E2 & the probability that A1 will realise E1 and E2.
Only if A1 scores higher (in action-desirability relative to E1) than any
alternative action, should R should choose to do A1. Provisions should be made
for, e.g. long-term
(standing) vs. situational ends. R may priorise family over business, and
his children over Aunt Jemima (who's been living with R all these years).
On a particular occasion, though, R may priorise Aunt Jemima (to get her out
of one of her tantrums) over taking R's son to see the hippopotami at the
zoo.
While prudential rationality is perhaps _not_ just means-end rationality,
the determination over desires certainly does involve means-end rationality.
In an appendix to the Locke lectures on reasoning (including practical
reasoning and the rudiments of legal reasoning) Grice proposes to explore
the_inclusive_ end of "counsels of prudence", viz. let R be happy.
Grice tries: to be happy is to be well-off, and this is analytic. Qua
inclusive end, this not only connects with the phenomenon of diminishing
marginal utility, but of _vanishing_ marginal utility. It may be, as Grice
puts it, that that, on occasions, the bucket of happiness is filled, and
no further inpouring of a desirable has any effect on its contents. One
feature to be preserved in the analysis is that what gives rise to the end
of happiness is not, strictly, a _means_ to happiness. Being a inclusive
end -- and a _rationally_ inclusive end at that -- it means it's rather, a a
set, or better, harmonic system, of ends, an end for the sake of which
certain desirables are desirable.
We need to analyse the contributiveness relation, i.e. the predicate "...
is contributive in way w to ...". Grice proposes: R wills to do P for the
sake of Q just in case R wills to do P because R judges his doing P as
somehting which is contributive in way w to the realisation of Q, and R
_wills_
Q. This involves all sorts of sub-modalities. Take 'causal': The causal
element may be an initiating factor ("I stop Jones talking by knocking him
cold") or a sustaining one ("I stop Jones's talking by keeping my hand over
his mouth"). Take 'specificatory': A host's seating someone at this right
hand side at dinner may be a specification of treating him with respect. Take
'inclusive proper': R may wish to take a certainly advertised cruise
because it includes a visit to Naples. R may be hospitable to someone today
because R desires to be hospitable to that someone throughhout his visit to
R's
town.
Aristotle's considerations on the practical syllogism help us here. Grice
notes two versions of such a syllogism.
R wills to realise Q, he enquires what would lead to Q & decides that
doing P would. So, R comes to will, & do, P. Or: R conceives his doing P,
enquires what doing P would lead to, sees that it would lead to Q, which he
finds himself willing. So R comes to will, and do, P.
There are complications, with regard to inclusive ends with _special
circumstances_. For one, a man wrecked on a desert island where he has thus to
spend some time (fixed scenario, not chosen) decides to study the local flora
and fauna.
A second complication is with reason versus rationalisation: a man wants to
move to Ipswhich, but he decides it's because of the salubrious climate.
Here the reason (though not, consciously, _his_ reason) why he desires to
move to a salubrious climate is that such a desire will justify the desire to
move to Ipswich.
A third type of case is illustrated by the tyrant who punishes a minister
by conferring to him the organisation of the disposal of the garbage of the
palace. Now, just to frustrate the tyrant's plan to humiliate the minister,
the ministe decides to take pride in the discharge of his duty. Here a
higher-order desire is involved: the minister wants to discharge his office
efficiently, "for its own sake" as it were, and he wants to want this because
he wants by so wanting to frustrate the tyrant. Grice thus notes that
"wanting p for the sake of q" covers indeed two different cases: R wants P
because R judges it to be a means for R, and (the minister case), R wants P
because he judges that _wanting_ P will help to realise Q. This is important:
with the inclusive end, "that R be happy", its components are not, strictly,
the realisation of a specific end but, rather, the desire for that
realisation. Wanting p for the sake of q, where q is happiness does not
strictly
require that R judges P is a means for Q; only that R judges that _wanting_
P will help realise Q; or, in other words, judging P is one of a set of
items which collectively exhibit the open feature associated with happiness.
Grice concludes with a "serious" problem regarding end-directed practical
reasoning: the closed systematicity of the alleged end. It will thus be
difficult, in the present scheme, to decide between the real happy life, and,
say, the life of a hermit, a monomaniacal stamp collector, an unwavering
egoist, and a
well-balanced, kindly country gentleman. Similarly, it may be quite a task
to decide what MUST (versus 'ought' or 'should') be done "in the interests
of justice". A way out of this objection concerns the importation of the
notion of value. Rationality is after all, man's metier of man, the capacity
with which the Genitor has endowed us in order to make us maximally viable
in our living condition, i.e. in the widest manageable range of different
environments, including the courts!
Cheers,
Speranza
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