Saturday, December 06, 2008

old and new

-A soldier in an army constituted in defense of a republic is simultaneously a servant of an authoritarian order and a free citizen with all the responsibilities thereof.

- All citizens should be treated equally under law.
In a state where the people are prone to act in a discriminatory way towards a minority population, it's the responsibility of the state to see that that minority population has full access to opportunities enjoyed by the majority.

-Even in a republic in day to day activity, law is law not because it is moral but because it is law. But in a republic every law is the product of public debate, and laws can be repealed. Every law therefore is both absolute and provisional, which is why a judge's defense of his decisions is as important or more so than the decisions themselves. Posner spends more time defending his philosophy than he spends in a court.

- Law is a function of the social. The powerful desire not only power but prestige. To say that the analysis of law, language, and the social, by those who see themselves even correctly as asocial is not without value is damning with faint praise.

-In the sciences the event is subsidiary, as token to its type. To claim that language works in this order is the logic of authoritarianism. Philosophy is labeling by type. Literature is description without naming. A court is a place of the public naming, a place and process used only as a last resort.

-Our justice system is founded on competition between hirelings, not truth-seekers. Lawyers are performers. Philosophers of law need to be theater critics.

-The basis of legal discourse in a democracy is not the laws themselves but the process of their making and unmaking. All laws are provisional: the foundation is argument itself. Laws are knots on a string, way-stations in language and time. Democracy is the culture that acknowledges the transience of individual laws. Democracy is the culture of language in use.

-Science is the study of facts and philosophy the study of values. Conflating the two in favor of facts, values become assumed. Values being assumed, all questions are seen as those of expertise. With expertise as the means, terms of measurement are assumed. [with expertise as the means, expertise becomes the goal.] Curiosity becomes defined by the frame, values defined by the frame moral worth defined by the frame.
Democracy is undermined as a value and then as a goal.

-There is such a thing as monarchist law because monarchist language is based on ritual.
There no such a thing as fascist law because fascist language is based on lies.

-What is the role of an elite in a democracy?

-We are taught as children not to be greedy. Greed is a commonplace. In order to navigate our way in the world we learn to understand not what only we want it to be but what it is. When does our acknowledgment of the facts become passivity and acquiescence? It's a mistake to assume that the wish to be better than we are, even as a wish largely unfulfilled, has had no impact on our behavior or our history.

No comments: