legal reasoning: characterization

Analysis of the discussion: modes of characterization (continued)


 

Here is another example, this time from Scott's defense of why he thinks it would be hardest to prosecute for putting graffiti on the rock:


 

[SCOTT: Because leaving trash implies you’re leaving something, a physical thing.  Now the rock was already there.  The graffiti you could say you’re leaving paint to let dry on the rock.  But that’s, I just think that is stretching it.]
 
Here, Scott defines "trash" as necessarily being a "something"; he then considers the list of five items and decides that since the rock was already on the beach, the only "thing" that was left in that case was the paint, which is much less thing-like than any of the other items.

In its substance and in its conclusion, Scott's argument is very different from Belinda's. Some viewers might consider one persuasive, some the other. But in their form, the two arguments are very similar. Belinda and Scott each - in this part of what they have to say - try to define a concept of "trash" as to which it is possible to list one or more necessary conditions which all members of the category must satisfy; when they then find something that does not exhibit a necessary feature, they can exclude it from membership in the concept, and accordingly from the coverage of the rule. Perhaps, if we followed this approach further, it would also be possible to list the conditions that would be not only necessary, but sufficient to make something "trash." In any case, this approach to characterization has two important features. First, the terms of the rule are treated as making reference to independent, self-standing concepts. "Trash" has a meaning quite apart from this ordinance, and it is that meaning that has been adopted by the rule. Second, these concepts can be defined by relatively sharp features, which all members of the class possess. In short, they have used an abstract, or formal, definitional approach to the problem of characterizing facts in terms of legal categories.