Friday, March 14, 2008

Musical performance from a score is not rule following, at least unless the performer wants to get booed off the stage. But the performer is not free to interpret the score any way he pleases or he risks the same fate. The same is true with law in a republic.

Contra Posner, a judge is an interpreter and explicator of law, to a public audience. And he is also a member of that public, just as a performer and interpreter of music is a member of the community: of musicians, aficionados, critics and passersby. Any individual is an example -characteristic of his kind and of his age- in most ways, even men as arrogant as Posner or Colin McGinn. To claim the authority to command law from outside the community is to be a threat to that community. To lead you have to cajole and not coerce, this is one of the principles of our form of government. And even coercion when it is permitted is mandated by the community and not an individual. But understanding that one is a product of a community, of a culture, a place, and time, means understanding how one's thought and ideas are not entirely one's own. To have ideas requires no second-order awareness. To watch yourself as you inhabit and live through them is its definition.
Awareness is the struggle against the inertia of assumption. Determinism is the baseline, not freedom. Pessimism, as a value, is the foundation for the rule of law.

This goes back a few years
and then here

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