Tuesday, May 13, 2008

Note taking. My comments
It would make more sense to frame your argument as being against short term and short sighted “practical” instrumentalism in favor of “instrumentalism for instrumentalism’s sake.”
As I’ve said again and again, instrumentalism as such is what this site is about: science as opposed to culture and the intensive study of externalities, and of what you imagine to be externalities, as opposed to the nurturing of a conscientious, ironic, and humane self-awareness. The Humanities in the Anglo-American world, post Sputnik, have become wannabe sciences. Your argument is an argument for “pure” research.
You put yourselves on this slippery slope a few generations ago (or maybe a few hundred years ago).
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"What's the function of law?
What's the function of religion?
Looking at it it becomes clear pretty quickly that religion doesn't have much to do with god, but that it is the original form of law. Before you ask how should law should change, ask how it does. How does god change?
Those two questions are the end of fundamentalism.

The dichotomy and our supposed need to choose between religion and technocracy or natural law and positivism, is a choice between one false foundation and another. Technocracy is no more valid a foundation than the Church, and Posner has no more respect for democracy than Scalia. It's amazing how the priesthood finds a way to propagate itself.
Laws are points in an endless debate, that's all. The debate is the foundation.
A response to a comment:

"'religion.... is the original form of law'.
Maybe, but only in a limited rule-giving sense."
But religion whether oral or written is still language, and begets interpretation; and one interpretation begets others, and then debate. The story just supplies the structure. As'ad AbuKhalil put it well in one of his posts on the mess in Lebanon:

"I was also displeased with the closure of Hariri media, as much as I detest them and as much as I believe that they have been engaged in acute sectarian mobilization that is exactly the same as of the propaganda of Al-Qa`idah. I will not enjoy writing in Al-Akhbar and attacking my opponents if they are not on an equal footing..."

Politics needs to be taken as seriously by its practitioners as sports are professional athletes. That's the logic of a courtroom, but trial lawyers understand this more than academics. My problem with legal realism is more than anything that it tries to undermine the game, choosing victory over process. The same is true of law and economics. Their values are assumed and unquestioned. What is public and social by nature is redefined as unsocial or even anti-social. We the people becomes we the elect and the logic of democratic process is sacrificed to the logic of spurious "truth"
I continue to be amazed when I'm reminded how many people see the choices as limited to either faith or technocracy, natural law, or positivism. Perception doesn't begin with naming, to a significant degree it ends with it: ending where/when/as communication begins.

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