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

West Midland Baptist (Trust) Assn v Birmingham (view source)

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 Bear in mind another, apparently consistent presumption: the [[common law]]’s fundamental value is ''certainty''. Merchants need to know, 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 all too human. It is not beyond contemplation that they might make a bish of things. So, what to do? And what if, in doing so, they reveal the camera trick, the hidden wire that supports  that very [[Epistemology|epistemological]] foundation falls apart on closer inspection. Where does it 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?
+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.
-Since newly decided cases overturn old ones, and the law does apply retrospectively, then by the jurisprudence of the law, the old law was ''never'' the law, even when everyone agreed it ''was''. But the device by which one discovers the old law isn't the law after all, and the new law ''is'' the law being, itself, a judge-made decision, 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 here the the very jurisprudential principle “revealed” by {{Casenote|West Midland Baptist (Trust) Association Inc|Birmingham Corporation}} and therefore at stake ''is'' that wider meta-certainty: that the [[common law]], as laid down by a decided case, may not be the [[common law]] after all. If it ''may'' not be it, it ''cannot'' be it: at best it is its shadow, flickering on the grotto wall, illuminated by Plato’s unseen candle.
+But not here, for the very jurisprudential principle {{Casenote|West Midland Baptist (Trust) Association Inc|Birmingham Corporation}} “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. This 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 of the law shows to have been a bucket of piss, well that’s tough. But you therefore you can’t rely on the later revelation of the law either, because it too might turn out to be wrong.
+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 you 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.
-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}}!''