Tuesday, September 02, 2003

This is in a sense the answer to a question I asked myself after my comments on Scott Martens: If I'm going to defend the rule of law, how can I criticize others for making arguments that I consider overdeterminded and technocratic?
A: Yes, well there are a lot of bleeding hearts around who just don't like to see people with helmets and guns. All I can say is, go on and bleed, but it is more important to keep law and order in the society than to be worried about weak-kneed people who don't like the looks of ...
Q: At any cost? How far would you go with that? How far would you extend that?
A: Well just watch me.
I would say one thing almost as bad as arguing for direct democracy in all decisions (the rule of man), is the attempt to justify in legal terms every extra-legal action that history in retrospect has found justified in moral ones.
"A foolish consistency is the hobgoblin of little minds."
"Hard cases make bad law."
Begin with Lawrence Solum on Richard Posner's review of "Lincoln's Constitution" and then read Posner himself:
There is value in distinguishing what is right from what is legal in order to avoid creating precedents that subsequent presidents might invoke in less exigent circumstances. One wouldn't want presidential suspensions of habeas corpus to become a habit. Article 48 of the Weimar Constitution allowed the president of the German Republic to suspend the Constitution in situations of emergency. The presidents invoked the power frequently, creating precedents for Hitler to employ when he took power in 1933. That is a pragmatic argument for limiting the pragmatic interpretation of our Constitution.
In other words: even though he broke the law, Lincoln did the right thing. But just because he did the right thing, it doesn't mean the law should change.

I'll go with Lincoln, Pierre Trudeau -the source of the first, and famous, quote- and Posner. An awareness of law should not preclude imagination.  But the question of when to break the law, like the law itself, is open to debate

There can be no wisdom without law. There can be no law without wisdom.

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