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West Midland Baptist (Trust) Assn v Birmingham: Difference between revisions
West Midland Baptist (Trust) Assn v Birmingham (view source)
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Since newly decided cases overturn old ones, and the law does apply retrospectively, then by the jurisprudence of the law, a rejected authority was ''never'' the law, even when everyone agreed it ''was''. But the device by which one discovers an old law isn't the law after all, and a new law ''is'' the law is itself a judge-made decision. It is no less prone to reversal. In most cases, ''c’est la vie'' — that fee of small-time volatility buys a greater sense of overall meta-certainty. | Since newly decided cases overturn old ones, and the law does apply retrospectively, then by the jurisprudence of the law, a rejected authority was ''never'' the law, even when everyone agreed it ''was''. But the device by which one discovers an old law isn't the law after all, and a new law ''is'' the law is itself a judge-made decision. It is no less prone to reversal. In most cases, ''c’est la vie'' — that fee of small-time volatility buys a greater sense of overall meta-certainty. | ||
But not here, for the very jurisprudential principle {{Casenote|West Midland Baptist (Trust) | But not here, for the very jurisprudential principle {{Casenote|West Midland Baptist (Trust) Assn|Birmingham}} “reveals” ''is'' that wider meta-certainty: that the [[common law]], as laid down by a decided case, may not be the [[common law]] after all. Now if it ''may'' not be it, it ''cannot'' '''be''' it: at best it is a derivative: a shadow, flickering on the grotto wall, illuminated by Plato’s unseen candle. | ||
So here is the [[paradox]]: If ''West Midland'' is right, being itself laid down by a decided case, it must by its own lights, be wrong. It is ''not'' the law. It is a fallible judge’s ''impression'' of the law. It is as susceptible of falsehood as the judgment which it overturns. Only if it is ''wrong'' can we have any certainty that it is ''right''. | So here is the [[paradox]]: If ''West Midland'' is right, being itself laid down by a decided case, it must by its own lights, be wrong. It is ''not'' the law. It is a fallible judge’s ''impression'' of the law. It is as susceptible of falsehood as the judgment which it overturns. Only if it is ''wrong'' can we have any certainty that it is ''right''. | ||