82,910
edits
West Midland Baptist (Trust) Assn v Birmingham: Difference between revisions
West Midland Baptist (Trust) Assn v Birmingham (view source)
Revision as of 19:51, 19 December 2020
, 19 December 2020no edit summary
Amwelladmin (talk | contribs) No edit summary |
Amwelladmin (talk | contribs) No edit summary |
||
| Line 9: | Line 9: | ||
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 sculptors, revealing to the world the [[platonic]] details of the law as they find them, as Duchamp did when exhibiting his ''Fountain''. Like R Mutt’s pissoir, the law was always there — it just took a craftsperson of sufficient skill and enlightenment to reveal it in all its artistic beauty. | 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 sculptors, revealing to the world the [[platonic]] details of the law as they find them, as Duchamp did when exhibiting his ''Fountain''. Like R Mutt’s pissoir, the law was always there — it just took a craftsperson of sufficient skill and enlightenment to reveal it in all its artistic beauty. | ||
Bear in mind another, apparently consistent presumption: the [[common law]]’s fundamental value is ''certainty''. | Bear in mind another, apparently consistent presumption: the [[common law]]’s fundamental value is ''[[certainty]]''. The [[JC]] has his own views about exactly when [[certainty]] as a virtue shifts from boon to bane, expounded [[Doubt|elsewhere]], but we can agree merchants need ''some'' idea 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]] is hewn from more [[Ontological certainty|ontologically]] rigid stuff: it suffers no such legislative fickleness: it is unchanging, for all times and for all people. | ||
We just might be temporarily mistaken about it. For judges, however excellent, are only [[Human, all too Human - Book Review|human]]. It is not beyond contemplation that they might make a bish of things. What if, in doing so, they reveal the hidden wire that delivers our jurisprudential conjuring trick? Where does the idea of the [[common law]] even come from? Could someone have made that up, too? Could it be, after all, that the law is a social construction? That a fellow in a horsehair wig just ''made it up''? Should we look under our foundation to see if we can find any turtles? Careful: our very [[Epistemology|epistemological]] foundation might fall apart on closer inspection. | We just might be temporarily mistaken about it. For judges, however excellent, are only [[Human, all too Human - Book Review|human]]. It is not beyond contemplation that they might make a bish of things. What if, in doing so, they reveal the hidden wire that delivers our jurisprudential conjuring trick? Where does the idea of the [[common law]] even come from? Could someone have made that up, too? Could it be, after all, that the law is a social construction? That a fellow in a horsehair wig just ''made it up''? Should we look under our foundation to see if we can find any turtles? Careful: our very [[Epistemology|epistemological]] foundation might fall apart on closer inspection. | ||