[lit-ideas] Re: You be the judge/What is wrong with this picture?
- From: Jlsperanza@xxxxxxx
- To: lit-ideas@xxxxxxxxxxxxx
- Date: Sun, 8 Dec 2013 20:11:50 -0500 (EST)
I know I'm not replying McEvoy's answers!, but found some more enlightment
from a previous post in Lit-Ideas, which I comment below.
I consider a few keywords that may apply: CONSEQUENTIALISM, relativism,
and whether Toulmin is right in thinking legalistic argumentation as the
model for any argumentation simpliciter.
Cheers,
Speranza
----
McEvoy:
"To think on the right lines, focus on two things: (1) what will be effect
of the result in cases, like Pilcher, where there is a trust of a house
that is sold, and (2) what will be the effect of the result in cases (the
vast majority) where there is no trust of a house that is sold? There. Said
it. The solution is there, in the answers to (1) and (2). So what are the
answers - what would be the effects? And what does this consequential
reasoning tell us as to what should be the rule here and therefore the result?"
Well, I append below some material from
//www.freelists.org/post/lit-ideas/Popperian-Jurisprudence-Amended
as I comment on it.
McEvoy:
"the case [Pilcher v Rawlins] that (in English law) ... [-] a
buyer of a house in good faith from a dishonest trustee takes ownership
free of
the trust [-]"
"there is scant explanation for the decision at all."
"In the Pilcher v Rawlins judgment, the rule is not located within a
framework of comparable rules."
"Still less is the decision explained as a result of weighing up the
consequences of deciding it
one way or another"
"Instead, we
find ... that the plaintiff [the beneficiary of the trust
who was suing to get the house back] was "non-suited"".
"Now what does this tell us (jurisprudentially speaking)?"
"What Pilcher v Rawlins does
illustrate is why it is very problematic ... to
think we can straightforwardly 'read off' the underlying legal thinking
from
'what judges say'.
---- This is a bit of an implicature too.
Compare Grice:
It is very problematic to think we can straightforwardly 'read off'
(BETWEEN THE LINES', the implicature) [of] the underlying ... thinking from
what
an utterer says!?
---
"Sometimes 'what judges say' may be a
reliable guide to the underlying thinking that underpins the decision, but
sometimes it may be an unreliable and even misleading guide."
And one wonders if one should wonder. I think it is more important to
emphasise what a judge says than what a judge THINKS. After all, is not the
evidence we have for someone THINKS what that someone SAYS?
---
"Sometimes 'what
judges say' cannot be taken at face value - indeed, it is_ always open to
argument_ to what extent 'what judges say' can be taken at face value in
any
particular case."
This may apply to any utterance whatsoever.
I say "It is raining".
Should we taken, to use Geary's phrase, "at face value"?
Perhaps the utterer is IMPLICATING something. And if we challenge with the
implicature ("Are you suggesting this is an excuse NOT to go to the
cinema?") he may go on to produce a dis- or counter-implicature ("On the
contrary: rainy days ARE ideal cinema days").
McEvoy:
"the decision that "it
would not be unconscionable for the honest buyer to keep the house" could
be disputed by saying 'How can the buyer keep in good conscience what he
discovers was subject to a trust?'"
I think it is for reasons like these that Toulmin thought of lawyer's
argumentation to be the model for argumentation simpliciter, rather than the
axiomatic approach favoured by philosophers or logicians of more Euclidean
tendencies?
It seems to be an argument for relativism, too?
McEvoy:
a
"court engages not merely in determining the limits of its own
jurisdiction ... but in solving
certain kinds of problem."
"This helps explain why some study of the effects of the law may be
relevant to
understanding the law even though that study played no part in the process
by
which that law was arrived at."
This seems like a justification of moral consequentialism that (I think)
Kant detested.
McEvoy:
"One tutor's book, based on his doctoral
thesis, was an attempt to show the role of "policy" in judicial
decision-making, by way of reading off the role of "policy" in
various judicial decisions."
"This 'reading off', we were repeatedly informed,
amounted to an "empirical critique" of rival jurisprudential views."
"Aside from the misconceived and pretentious use of "empirical" (for
how was this 'reading off' falsifiable by observation?), what the book
lacked
was some kind of argument or analysis that explained how we move from 'what
judges say [when giving judgment]' to the underlying jurisprudence."
"Another tutor's book was littered with specious and spurious claims of
which
the following is an example, but requires some scene-setting."
"At common law, if
I steal your painting and sell it to another who buys in good faith, that
buyer
does not get a good title - you can sue the buyer to get your painting
back."
"But property held under trust is different"
"If I hold ownership of a house as a
trustee for you [with my name on the deeds as the legal owner], and I sell
the
house to another who buys the deeds in good faith and without knowing my
legal
ownership is subject to a trust [which trust I have kept hidden from
them], you
cannot sue the buyer to get back the house."
"The tutor describes this different
result as the "only unacceptable result", because, to the
buyer, the common law crook [who never legally owns the property] and the
dishonest trustee [who has legal ownership but subject to a trust] will
look
the same."
"But this is specious and spurious. They do not 'look the same' in
any decisive sense: in terms of being detected by a buyer, the common law
crook
is much more detectable than the dishonest trustee: for the dishonest
trustee
is the legal owner, and so that they are the person named in the title
deeds,
and
that those deeds are genuine, will check out because it is true."
"The common law
crook can only pull off a fraudulent sale of a house by using fake deeds,
or by
pretending to be the person named in genuine deeds - but, in both cases,
the
pretense is detectable in ways that will not detect that a genuine legal
owner
holds subject to a trust."
"Ergo, they do not necessarily look the same at
all."
"It is the settlos of the trust who should be incentivised
to ensure that they choose a trustworthy trustee, something which they can
try
to ensure much more readily than a buyer can ensure that a legal owner
does not
actually hold that ownership subject to a trust."
"Without the incentives being
allocated properly, the law would not only become unacceptable in its
working
but would fall into disrepute."
Isn't that the implicature in "Oliver Twist": "The law's an ass!"
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