Friday, July 06, 2007

From October 30, 2004, found in the archives by accident:
Spent some time with this, [link is dead] then went back to the bookshelf and pulled out Taking Rights Seriously and looked up the references to H.L.A. Hart.
In reference to the above and to Jack Balkin:
The point of having faith is not to escape reality, but to see it clearly, as it is, and still be able to go on, because one has hope for something better and believes in something higher.

I have no interest in faith, nor in anything 'higher.' But I also have no interest in the technocratic formalisms of DeLong or their philosphical or legal eqivalent in the vulgarisms of Brian Leiter. In law as in life, every object or act has a two-fold existence, as a discrete thing, unnamable in nature, and as an example of a thing. I do not need a religious understanding to state that I am a specific substance/subject unlike any other. I also don't need a technocrat to tell me that I am a member of a community of Americans or english speakers. It is the genius of representative government moreover that the community decides how ideas become law, and it is the genius of the courtroom that decides when and how discrete actions and events take on the character of a thing named under law.

But such an argument requires an acceptance of contradiction. Every thing is an instance of a thing and yet nothing but itself. Some people may tend towards romance as a result of such ideas. Others may try to bypass the contradiction and choose a formalism that is clear, precise, and over simple. I prefer Jack Balkin's logic to Brian Leiter's not because I have any faith [in anything] but because I like complexity, and it seems to be that the world is complex. Balkin's arguments allow for that complexity. But that's not enough.

As I said recently, my interests are the interests of a craftsman. I'm interested in football as it's understood by the players. A lawyer wants to be a good lawyer; at his best he winks at the distinction between victory and truth. Philosophers tend to think of truth as someting obtainable. Others claim to be the avatars of the fact that there is none to be found. They speak the words of the great anarchist leaders of the past.

What interests me in the religiosity of Balkin, Russell Arben Fox, or I imagine Juan Cole [should I include Sistani as well?] is the sense that religious argument is about skill; that like legal argument it is about process, and that the truth as such, as a thing, is impossible to know. Such arguments strike me as more liberal that any argument by neo-liberals technocrats like DeLong, or the condescending pseudo-leftism of Leiter and his ilk (there's a long list).

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