I think that a better definition of conceptual or analytic truth would be
'something that we must hold to be true because we cannot really imagine it
to be otherwise.' In other words, we cannot really help assuming this to be
true. On some meta-me level, I can consider the possibility that 2=2 is
false, but I cannot see it pictorially. As opposed to, I can vividly
imagine a world populated by pink unicorns speaking Japanese etc.
On Thu, Nov 30, 2017 at 8:31 PM, Donal McEvoy <dmarc-noreply@xxxxxxxxxxxxx>
That bouncer now having got through, apologies for the several word errors
and omissions. E.g.
"where CA seeks to unveil necessary truths than are necessarily true
because 'conceptually' it could not be otherwise"
should have read
"where CA seeks to unveil necessary truths that are necessarily true
because 'conceptually' it could not be otherwise".
But, thanks perhaps to W3-based knowledge of what I must have intended,
many of you perhaps knew that already.
*From:* Donal McEvoy <dmarc-noreply@xxxxxxxxxxxxx>
*To:* "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
*Sent:* Thursday, 30 November 2017, 19:16
*Subject:* [lit-ideas] Re: [lit-ideas]
Again, re-repost of a bouncer:
Lord Collins, as quoted by JLS:
“I shall come back to some wider issues arising on the [convoluted and
thus not free from difficulty, when it comes to interpretation and
analysis] §35 and the Yorkshire Regional Health Authority case. First, I
want to look more closely at the CONCEPT OF CAPACITY which is the focus of
the convoluted §35(7) and CPR r17.4(4). In this context "capacity" is
“being used in the SENSE of legal competence or status to bring or defend a
claim. It is a competence that one may have in one's own right or on behalf
of another person.” The same MEANING of capacity must apply in CPR
r17.4(4). This means that the alteration in capacity which is referred to
is an alteration from a representative capacity, or personal capacity, to
another representative capacity, or (in the case of a representative claim)
to a personal capacity.” That is how it was put by Arden LJ in *Haq v
Singh* *1 WLR 1594* , paras 18-19, and that is the RIGHT MEANING in the
context. The best example of a “representative” capacity is that of an
executor or administrator of a deceased person, both offices being included
in the compendious expression "personal representative".”
Now is this conceptual analysis ['CA'] or problem-solving ['PS'] in its
approach, or some mixture?
Here we should look beyond the trappings of the outer language - the
"trappings" could be in 'problemese' yet the underlying approach a CA;
conversely, the "trappings" could be in 'conceptualese' yet the underlying
approach PS. For this reason, we should not read too much into Lord Collins
use of the term "concept" in respect of "capacity" (rather than his using
the term "term"*etc., *which would arguably serve as well here).
The key question is how is Lord Collins arriving at what is the right,
rather than wrong, "meaning"? This is a matter of theoretical, indeed
'philosophical', construction or interpretation (of Lord Collins' own
The PS-philosophy answers that Lord Collins, consciously or not, arrives
at his conclusions by a PS approach. (Though it is possible that a judge,
perhaps under the sway of CA, may mistakenly take CA as instrumental, that
judge will be self-deceived).
How does Lord Collins show his PS approach? First, by his *identifying
the problem(s)* addressed by "capacity" here: "In this context "capacity"
is “being used in the SENSE of legal competence or status to bring or
defend a claim"."
Now "capacity" has other senses in the law: for example, does a person
have the requisite mental capacity, or physical capacity; and the answer
may depend on the problem being addressed - so a person may have sufficient
mental capacity that a contract they entered into is binding but not
sufficient mental capacity that they could form the intention requisite to
commit a certain criminal offence like fraud (though the contract was for a
fraudulent purpose otherwise).
Here, as Lord Collins explains, the problem addressed by "capacity" is
about the right "to bring or defend a claim".
We can start with the "bring"-side *i.e.* the right to sue. We might
further start with some simple considerations.
X has his property damaged by Y. X is not minded to sue, because Y is his
friend. Can anyone else sue? The law's answer begins by looking at the
character of X's right to the property.
First case: if X's right is absolutely vested in X alone, for example X is
sole legal and beneficial owner, then only X has a right to sue - and
therefore, in the relevant sense of "capacity", only X has *the capacity* to
sue. Z may be potential beneficiary under X's will and Z may be morally
right that Y should be sued, but Z has no capacity - and can acquire no
capacity as things stand.
This is all true in English law, but not because it is "conceptually true"
- for it is easily conceivable that we could allow Z a right to sue Y (by
standing in X's shoes), at least in certain circumstances, say, provided Z
could make out a sufficiently compelling moral case given Z's position as
beneficiary under X's will.
Why then is it true in English law? It is true because *the law 'draws
the line'* so that there is no form of 'derivative action' here: this is
the law's (contingent) solution to the problem of 'drawing the line' here
as to "capacity" to sue. We are making a mistake if we elevate this
contingent solution into a form of conceptual truth, whereby we pretend to
ourselves that Z *could have* no "capacity" because Z falls outside the
'conceptual zone' for capacity where a right belonging entirely to X is
violated. What we "could have" here is entirely a matter of how we assess
and solve the problem. It is the law, via its decision-makers, that decides
how the line is drawn - not any of the concepts used.
Of course the position of Z is (or may be) different if the character of
X's right is different. For example, if X's right is not such that X is
sole legal beneficial 'owner' or holder of that right: we now have a very
different problem - and this may, and in English law does, give rise to a
quite different solution.
Second case: a different case would be where X holds property as trustee -
for example, X is personal representative for Q's estate and in that
"estate" is a house that is damaged by Y's negligence. As before, X does
not want to sue Y, because Y is his friend *etc.* Can Z, who is a
beneficiary of Q's estate, sue? The answer is not forced on us by any CA of
"capacity"* etc.* (*n.b.* nor did CA force on us the conclusion that Z
lacks "capacity" in the first case). We are looking at what is the best
solution to the problem.
As a matter of legal history, there is also always a story as to the
evolution of the law here - in terms of how problems presented themselves.
It may be (and likely sometimes is) that the history of the law would be
different if the sequence of the problems faced were different (and these
'contingencies of history' have a role that tends to refute the view that
what determines matters is CA).
For example, if the second case arose directly after the first case, a
court _might_ deny Z "capacity"*by analogy with the first case*. But let
us say (again a contingent truth) that a third case presented itself before
the second case.
In this third case, X is personal rep [*i.e. *in a "representative
capacity"] for Q's estate, but, before Q died, Q lent X a huge sum in X's
personal capacity. X, in his personal capacity, now owes Q's estate this
huge sum but is not minded to pay it. X, in his representative capacity, is
not minded to sue X in his personal capacity for the sum. Can Z, who is a
beneficiary of the estate, sue X in his personal capacity?
The 'derivative action' arises as the law's solution to this third case.
This solution has a specific and circumspect character. The law strikes a
balance between generally restricting "capacity" (so not every John Doe can
take action where some legal wrong is alleged) and extending "capacity" to
solve the problem in the third case - *i.e. *to prevent the obvious
injustice were the third case answered by restricting "capacity" only to X
(as this would allow X to cheat the estate of what X, in his personal
capacity, owed it).
This 'PS balancing-act' explains why Z, in Z's personal capacity as
beneficiary of the estate, is *not *allowed to sue X in Zs personal
capacity *i.e.* it would wrong to say that Z is allowed to sue X *only on
the basis *that Z is a beneficiary of the estate: one of the fundamental
points, accepted by all the Law Lords in *Roberts*, is that Z *cannot sue
X **in Z's personal capacity* but *can only sue X if Z acquires
"representative capacity"* to act for the estate. In practical PS terms,
this means that Z needs to persuade the court of two things (in order that
it grant Z "representative capacity" on the basis "special circumstances"
justify deviation from the starting-point that "representative capacity" is
vested only in X as sole personal representative): (a) Z has an important
lawful interest at stake, as a beneficiary of the estate (b) it is in the
interests of justice (*i.e.* there are "special circumstances") that Z be
granted "representative capacity" for the limited purpose of the proposed
action against X.
Once we have answered the third case, so as to permit Z a 'derivative
action' to ensure X cannot cheat the estate of what X owes it, we can
approach the second case armed with the validity of 'derivative action'
given "special circumstances": consequently, the answer to the second case
is not by analogy with the first case but by analogy with the third case -
it therefore depends on whether the circumstances are such that they are
"special circumstances" justifying Z stepping into X's shoes to sue Y.
(Despite some possible appearances to the contrary,) none of the above is
due to CA as usually understood by philosophers (where CA seeks to unveil
necessary truths than are necessarily true because 'conceptually' it could
not be otherwise), and all of it is best understood as a result of a
contingent PS approach to what are, after all, a series of practical
problems (not conceptual ones).