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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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No, as it turned out. | No, as it turned out. | ||
{{Capsule West Midland Baptist Trust}} | {{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 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 David Hilbert’s program] </ref> | 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 David Hilbert’s program] </ref> | ||
[[File:Duchamp Fountaine.jpg|300px|thumb|left|A receptacle for the [[golden thread|golden stream]], yesterday.]] | [[File:Duchamp Fountaine.jpg|300px|thumb|left|A receptacle for the [[golden thread|golden stream]], yesterday.]] | ||
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 | 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 ideal|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. | ||
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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''. | ||
So if you organised your affairs in reliance on what you, and everyone else, including the judiciary, at the time earnestly believed to the [[golden stream]], but which a later revelation shows to have been a bucket of piss, well that’s tough. But | So if you organised your affairs in reliance on what you, and everyone else, including the judiciary, at the time earnestly believed to be the [[golden stream]], but which a later revelation shows to have been a bucket of piss, well that’s tough. But, therefore, you can’t rely on the later revelation of the law either, because it, too, might turn out to be a bucket of piss. Which means perhaps you ''can'' rely on the old precedent, as it might turn out ''not'' to have been a bucket of piss after all. But as long as this new ruling ''isn’t'' considered to be a bucket piss, you can’t. | ||
''O tempora! O mores! O {{t|paradox}}!'' | ''O tempora! O mores! O {{t|paradox}}!'' | ||