Thursday, June 23, 2011

Someone posted a link to this. I've added to it a bit. And I'll add to it here too with a passage from something written elsewhere.
Antonin Scalia in a dissent from 2009
This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.
Scalia says this because the Constitution refers to due “process” not to outcome.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The letter and the spirit of the law. The phrase itself undermines the claims of naturalist epistemology. What is judging? Who’s to judge? Here we get back to the relation of art and law and of abstraction to representation.

On the letter of the law Scalia is correct. To argue from the spirit of law or language is subjectivism, and subjectivism is inarticulate, in-formal, isolate: the end of the social. But to argue only from the letter is cold, inhuman, unjust.
“He’s just a boy! He didn’t mean it! It was an accident! He’s my son!”
“Okay Let him go.”

“He’s just a boy! He didn’t mean it! It was an accident! He’s my son!”
“It doesn’t matter. It’s the law.”
Does it matter that he killed five people?
Who’s to judge?

Formal logic in the world of experience is pedantry, and military pedantry in civic life is fascism. Pedantry will always become hypocrisy. Policemen enforcing law will always tend to identify themselves not with its enforcement but its embodiment. “I am the law.” And by identifying themselves with law the law's authority will become theirs. St Paul says: "To the pure all things are pure.” That’s the pull of the short circuit, of identification. [I am the law/I am the social/I speak for you/I am you]
"Democracy is the culture of language in use." It's the rule of multiple experiences not of reason. It is and needs to be the rule of process. Assemblies and law courts are fora for collective decision-making; the only truth is the truth of process. Lawyers in practice as "practitioners" understand this. Legal philosophers, as philosophers, as "theoreticians" do not. In democracy, as in the arts, as in language, practice precedes theory. Laws do not make democracy, people make democracy. The laws are written after the fact to codify formal relations among people who agree as to values: collective subjectivity, collective preference.

All so fucking obvious.

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