Incommensurability again. Of course life commonly requires us to make choices taking into account incommensurable things. Should I have more children, or not? Should I give money to Oxfam or the English National Opera?
Utilitarians think these questions have right answers. They don't.
Take an example from law where (I think as currently advised) there is no necessarily right legal answer because what the judge is required to take into account are a number of factors that are incommensurable one
with another: the breach enquiry in the law of negligence.
So we can say that there are various factors that go into the mix (the seriousness of the potential harm, its degree of probability, the social usefulness of the conduct, the cost of precautions, social conventions outside the law) but that there is no
common yardstick to weigh these things up against one another by.
The attraction of utilitarianism is that it holds out to us the prospect that there is a common yardstick by which these questions can be judged. I am not a utilitarian, and so don't accept that. The Learned Hand formula for breach purported to adopt that approach in determining the breach question, but that neither reflects the law nor should it do so. (For example, the risk of harm to the claimant himself is not a relevant consideration, when a utilitarian approach says it should be.)
That is why 'reasonable care' is a jury question (that is what it was historically, and still is in the US). It is a question of fact. There are a number of considerations the jury/judge has to take into account, and if they don't they can be appealed, but that is as far as the law can go. The label "reasonableness" means "no law here". If a judge takes into account the relevant matters there can be no appeal, anymore than there could be on any finding of fact.
So, just as in life generally I don't deny that we have to make choices in civil actions where there is no right answer.
Six things then follow.
First, and most importantly, is illegality like that? Is it a 'factual' question, in the way that reasonableness is? If we still had juries would we be asking them to answer this question? I think the answer to that is obviously no. There is no more archetypally legal question than "does the coherence of the legal system require us to deny what would otherwise be required by interpersonal justice?" Illegality is a completely legal question, demanded by systemic concerns.
Second, one of the central points of law is to use rules to settle ethical questions which have no right answers. Abandoning rules is to abandon law.That is just as much true of rules created by judges as by the legislature.
Third we should only adopt the 'impenetrable black box' approach when we are compelled to do so as a last resort. It is the antithesis of law.
Fourth, because the entire point of the illegality rule is to require the judge to do injustice it needs to be formulated in rules as bright and clear as possible. If it isn't the instinctive pull on the judge will be to do justice for the parties in front of her, ignoring any wider systemic concerns.
Fifth if you are going to hand over discretion to judges to weigh up a host of factors, you have to structure it (despite claims that the Law Commission's proposals involved a 'structured discretion' they didn't). A structure would involve giving lexical priority of some factors over others. Just chucking everything into a mixer and stirring it round is an impossible task. How much deterrence outwieghs how much coherence?
This is the only way the various factors said to be involved in sentencing could be meaningfully addressed. So, retribution indicates a range of 10-15 years. Deterrence narrows that to 12-13 years. Rehabilitation gives
us 12 years. [In fact if you ever ask a judge how they conduct sentencing they say they ask their colleagues "What do you give out for armed robbery?", and are then told "It is 10-15 years depending on how bad it is. Your defendant used a gun, so 14."]
Sixth, and importantly, it is no answer to Fred's proposition that bricks and justice are incommensurable, and that being asked to 'weigh' them is nonsensical, that some judges make statements that seem to indicate
that they disagree. So much the worse for them. We need to let daylight in on the magic to show what is really going on then, as someone once said.
A different argument is that I consider all the other various 'policies that are said to support illegality to be not only bogus but if taken seriously immoral. The only relevant concern is the systemic coherence of the legal system. We can have an argument about what that concern then entails (Tinsley v Milligan? The Australian approach?) and how the rules then should be formulated, which doesn't automatically follow. But it doesn't involve the weighing up of a host of incommensurable things.
A different argument is that I consider all the other various 'policies that are said to support illegality to be not only bogus but if taken seriously immoral. The only relevant concern is the systemic coherence of the legal system. We can have an argument about what that concern then entails (Tinsley v Milligan? The Australian approach?) and how the rules then should be formulated, which doesn't automatically follow. But it doesn't involve the weighing up of a host of incommensurable things.
Rob
‘What is weightier, justice or bricks?’
====
From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@LISTS.MCGILL.CA] on behalf of Frederick Wilmot-Smith [frederick.wilmot-smith@ALL-SOULS.OX.AC.UK]
Sent: 12 January 2016 01:29
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 February
Sent: 12 January 2016 01:29
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 February
Dear Jane (and with apologies for length),
The question does not make sense, even though both justice and bricks can be pretty weighty. But justice and bricks are not commensurable in terms of weight (it’s a semantic trick: ‘weight’ means different
things when applied to each). These things might be commensurable with reference to something. Justice might cost more than bricks. But on this metric, weight, the question is an incoherent one. The incoherence objection, as I saw it when writing
that email, was the notion that the balancing in illegality is similarly nonsensical.
So two things are incommensurable just in case they cannot both be valued by some common metric. Cars are commensurable in terms of price, but perhaps not when it comes to comparing price and safety. I can
rank cars relative to their various qualities (A is cheaper than B, but it is less safe). There will still be some incommensurability: there may be no single property, which I seek in the car I buy, which makes some car the best. (I don’t want to overemphasise
this: people’s reasons for wanting cars to have various properties usually derive from reasons to do other things; there can be some commensuration at a higher level. But ‘balancing’ illegality defence folks don’t claim that there is this higher-level commensuration.)
A puzzle arises: what does reason have to say on my choice?
A few things:
- I might eliminate some options if I require the car to meet certain basic standards: no cars more than £x, no cars without airbags, &c. A judge who applies a sentencing statute can do this: execution is
ruled out, as is torture.
- I might rank my preferences: I want the safest possible car first, then the one with the best fuel economy, then … I think that sentencing statutes often work
with this kind of lexical priority, but I don’t know. The rule in Guinness v Saunders is another example: iff there
will be no inducement whatsoever to false fiduciaries, you can give an allowance.
- I might have a duty to choose one or another, e.g. if I promised you that I’d buy some particular car. Often judges are in this position: in the raw moral sphere there are dozens of things
for which they have sufficient reason to order, but their duty to apply law or do justice will make their options comparatively determinate.
Often I think I will have no more than sufficient reason to buy A or B; my reasons are not, in other words, conclusive, and that is arising not because of vagueness in value but incommensurability
between values. It is thus not irrational to choose either A or B. An illegitimacy objection (as I imagined it when I wrote the email) might be that judges should not have the freedom to choose between various sufficient reasons, especially where these reasons
concern various contentious issues (as in illegality). Perhaps it’s OK to have the illegality defence in a statute, hence permitting judges to pick which reason they wanted to follow on the day they hear the case.
All this shows that I can see how one can construct laws which enable reasoning with incommensurables. (It might be required: in sentencing (or awarding damages), one thing we need law to
do is to make concrete what is, in moral terms, underdetermined. I don’t think anyone suggests it’s required in the illegality case, though.) But in none of my options (even choosing for mutually sufficient reasons) was there ‘balancing' of
the factors. In no case was the rational problem resolved by seeking ‘proportionality’ between the various incommensurables. I just don’t see how that can be done. It would be to suppose that incommensurable factors can be made commensurate; it would be reducing
what is irreducible. Maybe I misunderstand what people have in mind by ‘balancing’ or ‘proportionality’. The implication of the metaphor is of one thing weighing against another. And we’re back to justice and bricks.
Fred
P.S. I am non-expert, too, so forgive me for any overreach. But, since you asked...
On 11 Jan 2016, at 23:25, Barbara Stapleton <jane.stapleton@ANU.EDU.AU> wrote:
====Dear Fred et al,As a non-expert I apologize for intruding on this List, especially as I have nothing to say here about the illegality issue. But I am intrigued by the "incoherence of incommensurability" comment. What do you mean by this? When a criminal judge is contemplating a sentencing decision - which inevitably involves consideration of incommensurables - is that an "incoherent" process? An illegitimate role?To adapt the old joke: we know full well balancing incommensurables works in practice*, but what about theory!
Best fromJane
*Think buying a car (trading off size, colour, fuel economy, design, price, safety...).
From: Enrichment - Restitution & Unjust Enrichment Legal Issues <ENRICHMENT@LISTS.MCGILL.CA> on behalf of Frederick Wilmot-Smith <frederick.wilmot-smith@ALL-SOULS.OX.AC.UK>
Sent: Monday, 11 January 2016 3:58 PM
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 FebruaryI don’t think I’ve ever understood the balancing approach. I’m not sure how to balance these disparate things.* Nor do I know, if balancing is theoretically coherent, what the acceptable mix is supposed to be. There must be thought to be some reason for restitution. Do we simply need a stronger countervailing reason (e.g. in deterrence, or whatever)? Or must it be much stronger? Or what?
A problem with how the illegality debate has proceeded is that the proponents of the Tinsley rule, and similar proposals, have not really explained what they’re doing, and why. Hence it’s open to opponents to say that their only merit is certainty. If they have any merit, though, it’s not just this. Nor is it simply avoiding they incoherence of incommensurability, though that seems a good start. Instead, they’re probably something like an interpretation of Hebert. I’m tempted by the idea that unjust enrichment would be coherent if it aimed to bring the world as close to the counterfactual one without without illegal actions. Usually (always?), that will mean allowing restitution. This is different from, say, contract law, where the Tinsley objection (as I understand it) is that one shouldn’t be able to use illegal actions to give rise to a new legal entitlement.
On the question of whether this is the best case to fix illegality, it’s not. But it’d be worse to wait for the right case. It’d be surprising if the SC convened a 9 member panel and didn’t sort the mess they’ve created out.
Finally, on Etherton, Toulson, and the Law Commission, this may say something about the legitimacy of these kinds of statutes. I think it's more permissible for Parliament to pass laws mandating balancing than for courts to do it of their own motion.
Fred
* As I understand it, no one suggests that the factors aren’t incommensurable; the disagreement is about whether this is a problem for a balancing or proportionality test.
On 11 Jan 2016, at 15:39, Gerard McMeel <gerard.mcmeel@GUILDHALLCHAMBERS.CO.UK> wrote:
====In response to the question whether this is the right vehicle for illegality per se (as opposed to the dubious extension of locus p.) I consider it is. The majority applied a mechanical, pleading based approach to the question of illegality and found it was illegal. Gloster LJ followed the balancing approach and held there was no illegality on that approach. I am not sure I agree with that, but her best point is that by statute – CJA 93 – the actual “inside information” investments would not have been made illegal by the commission of the crime alone, so why should the pre-contract to share the spoils?So the difference between the majority and minority clearly raises the correct approach to underlying illegality.Gerard
Barrister
23 Broad Street Bristol BS1 2HG gerard.mcmeel@guildhallchambers.co.uk Bristol Office: 0117 930 9000 Website | Profile | Email | VCard London Office: 020 3709 9100
Sent: 11 January 2016 15:26
To: ENRICHMENT@LISTS.MCGILL.CA
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 February1. I don't think Patel v Mirza should provide an opportunity for a wholesale reconsideration of illegality. The decision turned upon the locus poenitentiae rule. I don't think the CA accurately applied that rule (if it exists) and that their decision is inconsistent with Parkinson v Royal College of Ambulance. Being a conservative fellow, that is what I would confine myself to saying if I were in the court.2. I agree with Jason that the Hall v Hebert approach of seeing illegality as based upon (and only based upon) the systemic coherence of the law is correct.3. I wouldn't overturn Tinsley. The oddity in Tinsley was created by how the presumptions of advancement/resulting trust work.4. The proposed 'balancing' approach cannot possibly be right. How do we trade off coherence against, say, deterrence of future wrongdoing? That is like being asked to judge whether David Bowie or mackerel is better. They are incommensurable.If in Hounga v Allen we could show that illegal immigration was deterred by allowing employers to discriminate against illegal immigrants with impunity would the result have been different (even though she didn't have to rely on doing anything unlawful to make out her claim)?5. I fear that (by my reckoning) there are at least three members of the UK Supreme Court who will be tempted by Lord Toulson's preferred balancing approach. It may be a close run thing.6. The reason why the illegality rule seems both to do injustice and produce arbitrary results is because that is what it is supposed to do. The whole point of it is that we are departing from what interpersonal justice requires for systemic reasons. That is why those trained to do justice (judges) don't like it. Which is why we need rules to tell them firmly what to do. it appears arbitrary because whether illegality defeats your claim does not turn upon how meritorious you are.R
From: Enrichment - Restitution & Unjust Enrichment Legal Issues [ENRICHMENT@lists.mcgill.ca] on behalf of Jason Neyers [jneyers@UWO.CA]
Sent: 11 January 2016 14:49
To: ENRICHMENT@lists.mcgill.ca
Subject: Re: [RDG] SC appeal in Patel v Mirza on 16 FebruaryDear Charles:
What do you prefer to the Tinsley formulation? I can't see balancing as the answer. In contract and tort, I am fairly confident that the Hall v Hebert formulation of legal coherence is the best understanding of illegality but I have not given much thought to unjust enrichment (or how a Hall v Hebert coherence view would play out in that area of the law). I would of course be interested in everyone's views on this.
Sincerely,
Jason NeyersProfessor of LawFaculty of LawWestern UniversityN6A 3K7(519) 661-2111 x. 88435On 11/01/2016 9:12 AM, Mitchell, Charles wrote:A date for everyone’s diary: the SC will hear the appeal in Patel v Mirza on 16 February. A nine member panel has been listed, presumably because it is anticipated that some of the existing HL and SC authorities on the illegality defence will have to be overruled (please let them overrule Tinsley). The panel includes Lords Sumption and Toulson who do not agree on this topic. CM====This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to<listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
====This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.====This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
====This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
====
This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.
This message was delivered through the Restitution Discussion Group, an international internet LISTSERV devoted to all aspects of the law of unjust enrichment. To subscribe, send "subscribe enrichment" in the body of a message to <listserv@lists.mcgill.ca>. To unsubscribe, send "signoff enrichment" to the same address. To make a posting to all group members, send to <enrichment@lists.mcgill.ca>. The list is run by Lionel Smith of McGill University, <lionel.smith@mcgill.ca>.