West Midland Baptist (Trust) Assn v Birmingham: Difference between revisions

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 {{Capsule West Midland Baptist Trust}}
 ===Goedel’s undecidability applied to the [[common law]]===
-This question — should a “newly decided” [[Golden thread|thread]] of [[common law]] apply to human affairs pre-dating its development, and constructed in direct contemplation of prevailing common law principles which, later, turn out to be wrong? — articulates the same paradox by which [[Kurt Gödel]] buggered up David Hilbert’s aspiration to describe a complete and consistent set of all mathematic axioms.
+This question — should a “newly decided” [[Golden thread|thread]] of [[common law]] apply to human affairs pre-dating its development which were specifically constructed in contemplation of common law principles which, the new authority has adjudged to be wrong? — articulates the same paradox by which [[Kurt Gödel]] buggered up David Hilbert’s aspiration to describe a complete and consistent set of all mathematic axioms.<ref>https://en.wikipedia.org/wiki/Hilbert%27s_program </ref>
-Bear in mind the starting presumption: the [[common law]] is not judge-made, but judge ''discovered''. Judges are merely expert scupltors, revealing the platonic details of the law as Michelangelo did when carving David from a marble block. Like David, the law was always there, encased in that block of — what? Semantic confusion? White noise? — it just took a craftsperson of sufficient skill and enlightenment to reveal it.
+How so? Well, bear in mind the starting presumption of [[common law]] [[jurisprudence]] is that it is not judge-made, but judge ''discovered'' — an ''objet trouvée'' inverted, signed and exhibited as is. Judges are merely expert scupltors, revealing the platonic details of the law as Michelangelo did when carving David from a marble block. Like David, the law was always there, encased in that block of — what? Semantic confusion? White noise? — it just took a craftsperson of sufficient skill and enlightenment to reveal it.
-Bear in mind another, apparently consistent presumption: a fundamental value of the law is ''certainty''. Merchants need to know, moment to moment, that the legal foundations underpinning their commercial arrangements are not liable to shift. Hence while statutes are transparently the creature of men and women in a chamber, they will not, without the gravest of justifications, be applied retrospectively. But the common law does not suffer from legislative fickleness: it is unchanging, for all times and for all men and all women.
+Bear in mind another, apparently consistent presumption: the [[common law]]’s fundamental value is ''certainty''. Merchants need to know, moment to moment, that the legal foundations underpinning their commercial arrangements are not liable to shift. Hence, while statutes are transparently the creature of men and women and will not, without grave justification, be applied retrospectively, the common law suffers no such legislative fickleness: it is unchanging, for all times and for all men and all women.
-But judges, however excellent, are human. It is not beyond their powers to make a bish of things. So, what to do?
+But judges, however excellent, are human. It is not beyond their powers to make a bish of things. So, what to do? And what if that very epistemological foundation falls apart on closer inspection. Could it be, after all, that the law is a social construction? That a fellow in a horsehair wig just made it up?