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Summary Ethics and the Law Notes
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- Ethics And The Law
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- University Of The Witwatersrand (wits)
Summaries of the readings in ethics, going into relevant depth
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Topic 2: One Shared WorldD Davidson ‘On the Very Idea of a Conceptual Scheme’ Inquiries into Truth and Interpretation
(1984) 183
Conceptual schemes are ways of organising experience, they are systems of categories that
give form to data of sensation; they are points of view from which individuals, cultures or periods
survey the passing scene. Where the conceptual scheme cannot be translated into another
language because the thought process was only developed in that language, a problem
develops understanding the scheme. Alternatively, there is the idea that any language distorts
reality, implying that it is only without words that the mind understands things as they really are.
We may identify conceptual schemes with languages or allow for the possibility that more than
one language may express the same scheme.
Main Principle:
All humans share a single, unified view of the word where we do not understand each other we
can try to communicate our view of the world while optimizing agreement/understanding.
Conceptual relativism
Dictates that the conceptual schemes we are born in that are shaped by our communities
would be different, dependant on the community.
− That would mean that we wouldn't be able to understand one another’s conceptual
schemes, because our morality truth values would be so different.
− This would render translatability impossible because there is nothing shared/in common.
Claim 1
We experience this world through different conceptual frameworks/schemes is false.
− Explanation : Davidson challenges the idea that there can be radically different,
conceptual schemes/frameworks for understanding the world that are
incommensurable with each other
− He argues that the notion of a conceptual scheme, as it has been used in philosophy, is
vague and ultimately meaningless.
− He challenges the idea that there can be incommensurable conceptual schemes,
arguing that this would make communication and understanding across different
schemes possible.
Claim 2
Translation should not occur as we understand it but requires understanding of context.
− Explanation: Davidson rejects, the traditional view of translation that sees word as
isolated units of meanings that can be easily transferred between different contexts.
− He argues that meaning is always dependant on a larger content, including the beliefs
and assumptions of the speakers and the situation in which language is being used
− Davidson believes that translation involves not just tinding equivalent words in different
languages but understanding that larger context in which the language is being used
− He suggests that translation is possible because there are certain shared assumptions
and beliefs that underline all human connection
Link
Translation and the critique of conceptual schemes for Davidson is that if there are shared
beliefs and assumptions is necessary for translation and understanding across different
languages and cultures.
,Davidson writes: Nothing makes sentences and theories true: not experience, not surface
irritations, not the world, can make a sentence true. That experience takes a certain course,
that our skin is warmed or punctured, that the universe is finite, these facts, if we like to talk that
way, make sentences and theories true. But this point is put better without mention of facts. The
sentence “My skin is warm” is true if and only if my skin is warm. Here there is no reference to a
fact, a world, an experience, or a piece of evidence.
Our obligation to one another is to assume we are trying to understand one another and
attempt to gain the full understanding of what we are trying to convey. Davidson emphasises
that despite coming from different conceptual schemes, communication is still possible.
F Michelman ‘On the Uses of Interpretive Charity’ (2008) 1 Constitutional Court Rev 1
− Woolman cites as evidence, Barkhuizen, Masiya and NM and suggests that his reactions to
these decisions are widely shared among South Africa’s well-informed Court-followers.
− Woolman further states that the controlling opinions in these cases are ‘thinly reasoned’, in
the sense that they are insufficiently explained.
− Michelman questions Woolman’s diagnosis from these cases of ‘a court uncomfortable with
direct application of the specific substantive provisions of the Bill of Rights’.
− A ‘Principle of charity’ according to Wikipedia is ‘an approach to understanding a
speaker’s statements by interpreting the…statements to be rational and, in the case of any
argument, rendering the best, strongest possible interpretation of any argument’.
− Donald Davidson calls this ‘’the principle of rational accommodation’ and summarizes it as
follows: ‘We make maximum sense of the words and thoughts of others when we interpret in
a way that optimizes agreement’.
− He further states that ‘to see too much unreason on the part of others, is to undermine our
ability to understand what it is they are so unreasonable about’. It is to risk missing issues that
might merit our consideration.
− Normative pitfalls in judicial opinions:
− For one, these writings are utterances of law by a socially recognized organ of
authority to say what the law is, as they are the authorized law-sayers.
− A close examination of NM and Masiya from a methodological stance of all-but-last
ditch (last-ditch: an effort or attempt that is made at the end of a series of failures to
solve a problem, and is not expected to succeed) resistance against a conclusion of
blatant error, failure of nerve, or flight from responsibility on the court’s part can
demonstrate benefits of interpretative charity.
Direct and Indirect Application
We now have before us the following three, live possibilities:
(a) ‘direct’ = declaration of invalidity followed by remedial development of the common law;
‘indirect’ = development of the common law to keep it attuned to the spirit etc. of the Bill of
Rights, with no attendant declaration of invalidity
(b) ‘direct’ = a finding of the extant common law’s inconsistency with norms or standards
contained in one or another specific rights-granting clause; ‘indirect’ = no such finding, but only
a finding of disharmony with the general spirit etc. of the Bill of Rights taken as a whole.
,(c) ‘direct’ = judicial action in terms of Constitution sections 172(1), 8; ‘indirect’ = judicial action
in terms of section 39(2).
Direct (1) Indirect (2)
Judicial-review power to
Inherent power to develop
declare invalidity and
Form of judicial power (a) common law in normal
prescribe remedy involving
course of adjudication [2a]
revision of common law [1a]
Is common law inconsistent
with general objects of Bill of
Is common law inconsistent
Substantive test of Rights, even though not
with requirements of a
inconsistency (b) inconsistent with
specific right in the Bill of
requirements of any specific
Rights? [1b]
rights? [2b]
Controlling section of
172(1) and/or 8 [1c] 39(2) [2c]
Constitution (c)
NM v Smith
− Smith’s book, when published, identified the plaintiffs by name as persons living with HIV, as
the report had done.
− This amounted to a violation of their common law rights to privacy, specifically in terms of
the actio iniuriarum. The crux of her defense was that she acted in the honest (if mistaken)
belief that the plaintiffs’ consents, of which she read in the Strauss Report, covered
unrestricted circulation of the information regarding them contained in the report.
− Three members of the Court — Langa CJ, O’Regan J, and Sachs J — concluded that the
case against Smith disclosed a need to develop the common law so to remove an
incompatibility with the objects of the Bill of Rights in the matter of protecting privacy. These
members would have developed the common law so as to impose liability, on ‘media
defendants’ only, for negligent (or unreasonable), wrongful disclosure of private information.
The Court’s majority took a different tack. They joined an opinion by Madala J, holding that
Smith’s unauthorised disclosure of the plaintiffs’ private information should be found
intentional in terms of the extant common law standard of liability. They accordingly
ordered a judgment for damages against Smith while declining to address any question of
developing the common law. Of the three justices who thought the common law must be
developed, Langa CJ and Sachs J concurred in the order awarding damages to the
plaintiffs, on the ground that the record showed negligence on the part of Smith. O’Regan J
would have absolved Smith of negligence and, hence, of liability.
Critique
− Woolman’s objections to the Constitutional Court’s performance in NM are mainly directed
to the decision and opinion of the majority.
− In Woolman’s view, the decision in NM ‘appears to rest upon a deeply felt offence to the
majority’s moral sensibility about how vulnerable persons in our society ought to be treated.’
, − Woolman’s bill of particulars includes the following: (1) The majority ended up acting ‘as a
trier of fact in a run-of-the-mill actio iniuriarum matter’ — a sort of task, Woolman evidently
means to say, that the Constitutional Court was not created to do. (2) The majority’s crucial
factual determination regarding Smith’s intention is ‘contrary to the evidentiary record’,
which ‘cannot support a factual finding that the respondents had acted intentionally to
harm the privacy and the dignity interests of the applicants.’ (3) The majority failed to
provide an adequate explanation for why, once they had determined that the case would
be disposed of by applying an unmodified, long-established common law standard of
liability, they did not dismiss the appeal as being no proper concern of the Constitutional
Court. (4) The majority diminished the Constitution by declining to take up for consideration
a possible ‘challenge to the actio inuriarum grounded in a specific substantive provision of
the Bill of Rights’ or the possible ‘creation of a self-standing constitutional action grounded in
the right to privacy or the right to dignity.’ This objection echoes prior pleas from Woolman,
for a shift of the Court’s emphasis away from ‘indirect’ application of the Bill of Rights
pursuant to section 39(2) to ‘direct’ application pursuant to section 8. The Court’s penchant
for section 39(2) is deplorable, Woolman maintains, because it plays into the false
seductions of a so-called minimalist approach to constitutional adjudication that is unsuited
to the present, early stage of development of South African constitutional jurisprudence and
culture. It invites the Court to issue highly contextualised decisions that may feel right to the
justices and many of those looking on, thus avoiding or postponing intracurial division and
public controversy, but that remain unexplained on the level of principled, clause-by-clause
exposition of the meanings of the rights-guarantees in Chapter 2 and the values underlying
them. Yet the Court’s presumed, special capacity for that more challenging — in part
because potentially divisive — task of
S Woolman ‘The Amazing, Vanishing Bill of Rights’ (2007) 123 SALJ 762
Of particular import is the court’s persistent refusal to engage in the direct application of the Bill
of Rights. Moreover, this strategy — of speaking in values—has freed the court almost entirely
from the text, and thereby grants the court the licence to decide each case as it pleases,
unmoored from its own precedent.
Another consequence of this strategy is that the court has unwittingly undermined the Bill of
Rights. By continually relying on s 39(2) of the Constitution to decide challenges both to rules of
common law and to provisions of statutes, the court obviates the need to give the specific
substantive rights in Chapter 2 the content necessary to determine the actual validity of the rule
being challenged in the instant matter and of similar rules challenged in subsequent matters.
The two-step interpretative process engineered by the drafters of the Bill of Rights ought to
produce black-letter constitutional law. In a domain to which rules are even more germane,
the judicial system itself, rules of blackletter constitutional law ensure that lower courts and
lawyers can identify the law and thereby settle, litigate and adjudicate, with some confidence,
fundamental rights cases.
The court’s ongoing failure to develop coherent doctrines in many areas of fundamental rights
jurisprudence does not only undermine the Bill of Rights and the rule of law. It places the court’s
very authority at risk.
MASIYA
The High Court recognized that, in determining whether the common-law definition of rape had
to be altered, it would have to take cognizance of the actual ambit of specific substantive
rights that the current definition ostensibly violated: dignity, equality, freedom and security of
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